Ned Haughton v Minister for Planning and Delta Electricity

December 2011

EDO NSW acted for Ned Haughton - a student and environmental activist challenging the Minister for Planning's approvals of two new coal or gas fired power stations - Bayswater B Power Station and the Mount Piper Power Station Extension.

Both proposals were declared to be 'critical infrastructure' projects under the Environmental Planning and Assessment Act 1979 (the EP&A Act), which means that the approvals could not be challenged by third party objectors without the Minister's permission.

Mr Haughton challenged the validity of the approvals on several grounds but, most significantly, on the ground that the Minister failed to consider the impact of the projects (both alone and together) on climate change. Mr Haughton argued that the Minister was required to do so as part of his duty to consider the public interest. Similarly, Mr Haughton sought to establish that the Minister failed to consider the principles of ecologically sustainable development (ESD), particularly the precautionary principle and the principle of intergenerational equity, as he was also required to do as part of his duty to consider the public interest.

Importantly, Mr Haughton also challenged the privative clause in the EP&A Act which sought to prevent judicial review of breaches of the EP&A Act in respect of critical infrastructure projects.

On this issue, Mr Haughton was successful. The Court found that the privative clause in the EP&A Act could not remove the jurisdiction of the Court and that any person can bring proceedings to address alleged breaches of the Act.

However, Mr Haughton was unsuccessful on the remaining grounds. The Court found that although the Minister is required to consider the public interest, that requirement is general in terms of what it encompasses. Therefore, the Minister was not bound to consider any specific element of the public interest such as the principles of ESD or the impacts of the development on climate change. Rather, these are issues that can be balanced with other issues relevant to the public interest, including the need to secure the supply of electricity for the State. A failure to consider any one of these issues will not invalidate the decision. The Minister was not required to refer specifically to the principles of ESD in his decision.

EDO NSW acknowledges and thanks Ms C Adamson SC, Ms S Pritchard and Ms C Burnett of Counsel for their appearance and contribution to the case.

Points of Claim Judgment