Ecologically sustainable development 

Ecologically sustainable development (ESD) is the organising policy idea that now runs through almost every piece of Australian environmental and planning legislation. It expresses the aim of meeting the needs of the present generation without compromising the ability of future generations to meet their own needs, through a small set of recurring components that decision-makers are directed to consider. Before looking at any single doctrine in this subject, it is worth understanding ESD and the fractured structure of Australian environmental law together, because almost nothing else in this area makes sense without them.

The core components of ESD

Australian statutes and intergovernmental agreements typically break ESD down into four related ideas:

• the precautionary principle — where there are threats of serious or irreversible environmental damage, a lack of full scientific certainty should not be a reason to postpone measures to prevent that damage;
• intergenerational and intragenerational equity — the present generation should manage resources so the environment's health, diversity and productivity is maintained or enhanced for future generations, and equity concerns extend within the current generation too;
• conservation of biological diversity and ecological integrity — biodiversity protection should be a fundamental consideration in decision-making, not an optional extra; and
• improved valuation, pricing and incentive mechanisms — environmental factors should be properly valued, including through pricing mechanisms, rather than treated as costless.

These components are not a checklist to be mechanically ticked off. They are better understood as a cluster of considerations that pull decision-making in a particular direction, weighed against the other economic, social and technical considerations a piece of legislation also requires.

ESD as an interpretive principle, not a free-standing rule

A crucial and frequently misunderstood point is that ESD is generally not, on its own, a rule that can be directly enforced. In most legislation ESD appears as an object of the Act, or as a matter the decision-maker must consider or have regard to, rather than as a substantive standard that a project must independently satisfy. Courts have generally held that where a statute obliges a decision-maker to take ESD principles into account, that obligation is satisfied by genuine consideration of those principles as part of the overall decision — it does not mean the decision-maker must reach the most environmentally protective outcome available. ESD therefore operates as an interpretive lens through which broader statutory discretions are read and exercised, rather than as a directly enforceable rule that a court will apply to override a decision on its merits.

This matters practically: a party unhappy with a development or approval decision cannot usually succeed simply by showing that a different decision would have been more consistent with ESD. They generally need to show that ESD, as a mandatory relevant consideration, was not genuinely considered, or that the decision was legally unreasonable in some other respect.

Why this subject is unusually fragmented

Environmental and planning law is one of the most jurisdictionally fragmented areas of Australian law, and this needs to be understood from the outset rather than discovered part-way through a problem.

Land-use planning is almost entirely a state and local government responsibility. Each state and territory has its own planning legislation, its own hierarchy of planning instruments, and its own local planning schemes administered by local councils. There is no national planning code, and no single Commonwealth statute governing how land is zoned or how development applications are assessed anywhere in Australia. A planning concept in one jurisdiction cannot be assumed to apply, or to work the same way, in another.

Environmental approval is also primarily state-based, but the Commonwealth adds its own overlay through the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act).¹ That Act requires separate Commonwealth approval for any action likely to have a significant impact on a matter of national environmental significance — broadly, things such as World Heritage properties, nationally listed threatened species and ecological communities, and internationally significant (Ramsar) wetlands. Because state and Commonwealth approval operate under entirely different statutes with different triggers, a single development or resource project can genuinely require both a state planning or environmental approval and a separate Commonwealth approval under the EPBC Act, assessed by a different decision-maker against different criteria. Neither approval substitutes for the other.

ESD sits across both layers: it is an object or consideration in state and territory planning and environment statutes, and it is also embedded in the objects and decision-making provisions of the EPBC Act itself. Recognising which layer, or layers, are engaged by the facts is the first task in any environmental law problem.

Applying this in a problem question

1. Identify which components of ESD are engaged on the facts — precaution, intergenerational or intragenerational equity, biodiversity conservation, or valuation of environmental factors.
2. Locate the specific provision that makes ESD relevant: is it an object clause, or a mandatory consideration the decision-maker must have regard to?
3. Do not treat ESD as a free-standing rule requiring a particular outcome — ask instead whether it was genuinely considered as part of the decision.
4. Separately identify whether the facts engage state or territory planning/environmental law, the Commonwealth EPBC Act, or both, and never assume one approval covers the other.
5. Where a matter of national environmental significance may be affected, flag the need for Commonwealth EPBC Act approval as a distinct step from any state process.