Rowe v Lindner (No 2) - [2007] SASC 189

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
ROWE v LINDNER & ORS (NO 2)
[2007] SASC 189
Judgment of The Full Court
(The Honourable Justice Sulan, The Honourable Justice Anderson and The Honourable Justice Layton)
24 May 2007
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - MATTERS FOR CONSIDERATION OF CONSENT AUTHORITY - CONSIDERATION OF PARTICULAR PLANNING MATTERS - ENVIRONMENTAL MATTERS
Second appeal against decision of Environment Resources and Development Court (ERDC), following rehearing by ERDC after first successful appeal - appellant applied for and obtained provisional development plan consent from the Regional Council of Goyder to build a feedlot on his property - ERDC overturned the Council's decision to approve the proposal - the appellant appealed to the Full Court of the Supreme Court - the Full Court allowed the appeal and remitted the matter to the ERDC - the ERDC again allowed the appeal and refused the proposal - appellant argued that, in rehearing, the ERDC made findings inconsistent with the findings of the Full Court - whether ERDC had regard to the Full Court's findings or "merely reaffirmed their earlier decision" - whether ERDC had sufficient regard to relevant statutory regimes and powers - whether findings of the ERDC were supported on the evidence - whether ERDC gave too much weight to Objective 40 of the Council's Development Plan and insufficient weight to other objectives - whether ERDC appropriately applied the precautionary principle - Held: No error disclosed in the reasons of the ERDC - the ERDC had regard to all matters directed by the Full Court - appeal dismissed.
Development Act 1993 s 3; Natural Resources Management Act 2004 s 124(3)(b), 193-197, referred to.
Tuna Boat Owners Association of SA (Inc.) v Development Assessment Commission (2000) 77 SASR 369; Telstra Corp Ltd v Hornsby Shire Council (2006) 146 LGERA 10; Rowe v Lindner & Ors [2006] SASC 176, considered.

ROWE v LINDNER & ORS (NO 2)
[2007] SASC 189
Full Court: Sulan, Anderson and Layton JJ

SULAN J: I agree with the reasons of Layton J. I would dismiss the appeal.
ANDERSON J: In this matter I have had the advantage of reading the reasons in draft of Layton J. Her Honour sets out the background of how this matter has moved from the Environment Resources and Development Court (ERDC) to the Full Court and then back again to the ERDC and then finally back to the Full Court.
During argument I was of the view that either the ERDC had misunderstood the reasons of the Full Court or had simply decided upon further consideration that it did not need to follow the directions of the Full Court contained in the judgment.
However as Layton J has carefully illustrated, the ERDC reviewed all of the evidence, it heard further submissions and it took note of the areas where the Full Court had given directions. This in turn has meant there is now a new decision, albeit with the same result. I am indebted to Layton J for her analysis of how each of the points was reconsidered by the ERDC. I now find myself in agreement with the analysis and conclusions reached by Her Honour.
My conclusion therefore is that the appeal should be dismissed for the reasons given by Layton J.
LAYTON J:
Introduction
This is the second appeal from a decision of the Environment Resources and Development Court (“ERDC”) in this matter, and it follows a rehearing by the ERDC after an earlier successful appeal. The brief history of the matter is as follows:
·On 15 March 2005 the District Council of Goyder approved a proposal for a feedlot on a property.
·Mr Lindner and Mr Whetstone had earlier lodged an objection to the proposal, and subsequently appealed to the ERDC against the approval.
·The ERDC heard the appeal on 17 October 2005 and on 23 November 2005.
·The ERDC upheld the appeal and overturned the Council’s decision to approve the proposal.
·The appellant, Mr Rowe, appealed to the Full Court of this Court. The appeal was heard on 9 March 2006.
·On 15 June 2006 the Full Court delivered its reasons, in which it allowed the appeal and remitted the matter back to the ERDC for further hearing and determination.
·On 26 July 2006 the ERDC heard further submissions on the matter but no further evidence.
·On 10 October 2006 the ERDC again ordered that the appeal be allowed and the proposal be refused.
The appeal now before this Court concerns the ERDC decision on 10 October 2006 to refuse the Development Application. In short, the appellant submits that on the rehearing, the ERDC made findings of fact inconsistent with the findings and the guidance given by the Full Court. The respondent did not take part in this appeal and therefore this Court does not have the benefit of hearing any arguments to the contrary of the submissions made by the appellant.
The proposal
Mr Rowe applied for provisional development plan consent for a feedlot, under the Development Act 1993. The proposed feedlot was to occupy an area of 6.43 hectares on the Princess Royal Station (“the Station”). The Station, which is approximately 8,900 hectares in area, is in the General Farming Zone. A feedlot may be an acceptable land use in a General Farming Zone, provided that it does not have an unreasonable adverse impact upon other land users in the area.
The object of the proposed feedlot was to allow the Station to integrate its breeding and feedlot processes to improve the profitability of its sheep and cattle farming. Essentially, the feedlot would allow the Station to ‘finish’ their calves and lambs on the Station, rather than sending them to a feedlot leased in Clare, prior to their sale to an abattoir.
The Station is an important area for catchment and recharge of the Burra Creek system. The Burra Creek Catchment area consists of a narrow valley from Hallet in the north, to the watershed of the Alleluia Hills in the South. The creek begins in Burra and flows for some 50km as a narrow channel before spreading out on the flood plain for the next 35km. If there is enough water, it enters the River Murray.
In early 2004 the application for the feedlot was submitted to the Council. The proposed feedlot was to be located in the Burra Creek Catchment area and was expected to use 25 megalitres of groundwater per annum. The application was opposed by a number of local residents, on the grounds that it would use excessive amounts of water to the detriment of other water users.
The Environment Protection Authority ("the EPA") inspected the initial site and considered that it was too close to the Burra Creek. The appellant then issued a fresh application proposing a site recommended by the EPA. The EPA attended the Station and approved the application under certain specified conditions.
The decision at first instance
At first instance, the ERDC upheld the appeal by Messers Lindner and Whetstone, and reversed the decision of the Council to approve the proposed feedlot.
The ERDC considered that the principal question with respect to the proposal was whether the use of groundwater by the feedlot would have a deleterious effect upon the ground and surface water flows. In this respect the ERDC had regard to the Council’s Development Plan, created under s 3 of the Development Act. The ERDC specifically focussed upon Objective 40 of the Plan, which is:
Protection of all water resources from pollution or excessive usage which would threaten the long-term reliability of the existing resources.
In assessing whether the proposal would comply with Objective 40, the ERDC did not have before it any data from observation wells in the catchment area, which is a recognised means of determining long-term trends in groundwater levels. The ERDC instead relied upon anecdotal evidence of groundwater levels and surface flow, given by property owners in the Burra Creek area. Evidence was also given by Mr Brandle, a scientific officer with the Department for Environment and Heritage; Dr Muller, who is qualified and experienced in the field of natural resource management; and Mr Howe, a hydrogeologist. The ERDC preferred the evidence of Dr Muller to that of Mr Howe for reasons which it expressed. The ERDC found that Dr Muller’s evidence was that the available information at that time showed the use of water resources could not be sustained.
On the basis of this evidence, and in particular the reliance on the opinion of Dr Muller, the ERDC concluded that the water resources within the Burra Creek system were in a state of significant decline, and that current rates of water use were not sustainable. Consequently, the ERDC held that the proposal failed to comply with Objective 40 of the Council’s Development Plan, and concluded that this failure was fatal to the proposal. The ERDC upheld the appeal and reversed the Council’s decision to approve the proposal.
The decision of the Full Court
The Full Court highlighted five matters in which it considered that the ERDC had erred.
First, it considered that the ERDC erred in finding that Dr Muller’s opinion as expressed in her evidence was that water use in the Burra Creek Catchment was unsustainable. This Court stated that her evidence did not support such conclusion.
Second, the court considered that Objective 40 of the Development Plan was required to be considered in the light of the legislative regime set out in the Natural Resources Management Act 2004 (“NRMA”) as well as the State NRM Plan and Regional NRM plans.
Third, the ERDC erred in that it relied upon the evidence of Dr Muller, (which the Court had previously found to be erroneously interpreted by the ERDC), and gave undue weight to the precautionary principle, without giving sufficient regard to other factors, including the objectives of the Development Plan and the NRMA.
Fourth, the ERDC failed to have sufficient regard to other Objectives in the Development Plan, besides Objective 40. In particular, it was not sufficient for the ERDC to simply identify Objectives as short-term and therefore dismiss their relevance.
Fifth, that the Principles of the Development Control set out in the General Farming Zone in the Development Plan, were also matters which required appropriate consideration.
In short, the Full Court decided at [81]:
When determining whether to approve a development application the authority assessing the application must weigh up and consider a number of factors. These factors include the Objectives and Principles of the Development Plan as a whole, relevant legislative regimes and the evidence before it. In this instance the ERDC did not have sufficient regard to the Act, did not consider the Objectives and Principles of the Development Plan as a whole, and it made a finding that water use is unsustainable on insufficient evidence.
The decision on re-hearing
As earlier indicated, on re-hearing the matter, the ERDC heard further submissions from the parties, but no further evidence was adduced. The Court gave its decision on 10 October 2006, and again concluded that the proposed feedlot should not be granted provisional Development Plan consent pursuant to the Development Act.
Appellant’s argument
In essence, counsel for the appellant, Mr Hayes QC, submitted that the ERDC had simply “gone through the case again and merely re-affirmed their earlier decision”. It was submitted that the ERDC had not considered the matters to which the Full Court had directed its attention and, more importantly, they relied on evidence which the Full Court indicated in its reasons, did not support the findings made previously by the ERDC.
Mr Hayes submitted that the current findings were much the same findings as were made on the previous occasion, and were based on exactly the same evidence. Detailed argument was put in support of these matters. I will consider each of the arguments separately although there are elements which overlap.
Reliance on Dr Muller
Mr Hayes submitted that the ERDC in approaching the evidence of Dr Muller, appears to simply set out reasons why, in effect, its previous finding of unsustainability of water use was in fact correct, being the very issue that this Court had indicated was not supported on the evidence.
In making this submission Mr Hayes particularly relied on [8] of the ERDC’s reasons, which reads as follows:
In the light of the decision of the Full Court, we have thoroughly reviewed our assessment of Dr Muller’s evidence. Dr Muller seems to us to be saying that, bringing her expertise to bear upon all of the anecdotal evidence given to her, together with all of the data she had been able to obtain (which was not all she would wish for), she had formed the view that it was probable that the present level of water use in the Burra Creek catchment is unsustainable, and that the extraction of at least 25ML per annum for the feedlot would aggravate that already unsatisfactory situation. (emphasis added)
Mr Hayes submitted that the portion of the reasoning emphasised, indicated that the ERDC was again reaffirming its view that Dr Muller’s opinion was that the present level of water use in the Burra Creek was unsustainable.
Whilst paragraph [8] standing alone appears to have a flavour of defensive reasoning and self-justification for its previous conclusion, this paragraph should be considered in the context of the following further paragraphs of the ERDC's reasoning:
11    Dr Muller’s conclusion in her statement, which she did not recant under cross examination, was:-
In my opinion, the cattle and lamb feedlot proposed for Lot 344 D46215 Hundred of Kooringa has a high potential to cause irreversible damage to the surface and ground water resources of the Burra Creek catchment and in so doing has the potential to irreversibly damage the social, economic and ecological assets dependent upon the Burra Creek catchment water and compromise existing and Future Catchment water uses. (emphasis added)
12    We accept Dr Muller’s evidence. In doing so, we are not making a conclusive determination about water sustainability. Rather, we are agreeing with Dr Muller’s assessment of the risks on the basis of the information available.
…
36    Bearing in mind all of the provisions of the Development Act and the Natural Resources Management Act and all of the evidence in this matter, it is our view that the proposed development would contravene Objective 40, in that, instead of protecting the Burra Creek catchment from overuse, it would expose the catchment to a significant risk of overuse and consequent harm. The evidence of Dr Muller, Mr Phillips, Mr Strachan and Mr Falkenberg leads us to that view. Objective 40 requires a relevant authority, and this Court, when assessing a proposed development, to assess the risk to an affected watercourse that is a water resource likely to be impacted upon by that development. The scientific certainty of overuse is not required to trigger its applicability.
37    Principle 4 of the General Farming Zone seeks the careful assessment of new agricultural developments to ensure that they do not exceed the capability of the land to sustain them. On our assessment of the evidence, there is a significant risk that the proposed feedlot would exceed the capability of the land to sustain it, having regard to the extent and manner of its use of underground water.
38    … The potential direct effects of a feedlot are avoided in this proposal because of its location, which is a factor which weights in the proposal’s favour. However, on the basis, in particular, of Dr Muller’s evidence, the proposal has significant potential to have a seriously adverse impact upon existing land uses in the locality by means of its likely impact upon the availability of ground water and its potential to damage the underground water systems. (emphasis added)
These additional references to Dr Muller in their context, indicate that the ERDC was expressly declining to make any conclusive determination of water sustainability but was instead focussed on evaluating the risk of harm that the proposed development may have on a watercourse as a water resource, by reason of overuse. The ERDC considered that this assessment was required to be made because of Objective 40 which provides:
Objective 40: Protection of all water resources from pollution or excessive usage which would threaten the long-term reliability of existing resources.
In my view, this was an appropriate approach when considering the application of Objective 40. The ERDC did not express the conclusion, as it had so categorically done before, that Dr Muller’s opinion was that the water use was unsustainable. Instead the ERDC referred to the opinion and evidence of Dr Muller and used that evidence to assess the potential risk of overuse of water resources and consequent harm. This opinion was based on the information which was available to Dr Muller, together with her knowledge and experience. In Dr Muller’s view, there was a “significant” risk or a “high potential” risk of serious damage or adverse impact upon existing land uses due to overuse of water. I consider that the statement of the ERDC at paragraph [8] of its reasons should be looked at in a context. The use which was made by the ERDC of Dr Muller’s evidence differed from its earlier approach. I therefore reject Mr Hayes’ argument that the ERDC failed to heed the reasons expressed by this Court in relation to its approach to the evidence of Dr Muller, whose evidence was preferred to that given by Mr Howe. Dr Muller’s evidence will be further discussed later in these reasons.
Natural Resources Management Act
The appellant submitted that contrary to the approach which this Court had indicated was appropriate, the ERDC did not have proper regard to NRMA and had incorrectly addressed the effect of s 124(3)(b) of the NRMA as well as the availability of protection orders. The appellant pointed to paragraph [20] of the reasons in which the ERDC stated:
20 We have considered the availability of protection orders, reparation orders, reparation authorisations and action plans under the Natural Resources Management Act. A prerequisite for the issue of a reparation authorisation and a reparation order is that the issuing authority must be satisfied that a person has caused harm to a natural resource. Once harm has been caused, these measures prevent it from continuing and attempt to achieve reparation. The reparation of damage to a natural resource is not always possible. A protection order would, similarly, typically be made when there was evidence of actual damage or where the activity being undertaken or which was about to be undertaken posed an uncontrovertible threat to a natural resource (eg the release of sewerage into a lake). [emphasis added]
The appellant contended that there was nothing in the NRMA which indicated that evidence of actual damage or uncontrovertible threat was a pre-requisite for a protection order. It is true that the Act does not specify those matters as being essential elements, but in deciding whether the ERDC is in error, it is important to note the precise words used by the ERDC and then consider their context and relevance.
The ERDC did not state that evidence of actual damage was a pre-requisite. It was simply indicating the circumstances in which a protection order would “typically be made”. This is indicating as a matter of practice rather than stating an essential element required for the taking out of an application, or being successful on an application. It was submitted that this approach of the ERDC was incorrect, and further that the NRMA was so recent that no protection orders were known by counsel to have been made. Counsel may or may not be correct, bearing in mind that the procedure is not governed by overt Regulations and appears to be dealt with by a discretionary internal decision-making process. Presumably such a process may be triggered by a complaint by an individual, group, or corporation, or may occur as a result of some internal concern within the Authority. A specialist court is likely to know of such practices. More importantly however, is that such a criticism fails to have regard to the point being made by the ERDC.

The Full Court had previously indicated that it was necessary for the ERDC to have regard to the protection of natural resources under the whole legislative regime and not simply Objective 40 in isolation. This would include consideration of the means for protection available under the NRMA. The ERDC was reflecting on this aspect in paragraph [20] and was addressing the availability of a variety of potential protective aids available under NRMA and their relative applicability. The reference to reparation orders was not questioned by the appellant.
Protection orders are part of the armoury available under the NRMA Chapter 9 Part 1, headed Civil Remedies. This Part encompasses sections 193 to 197. Protection orders are issued under s 193 by an NRM authority or a State authorised officer. Section 193(1) of the NRMA provides that a protection order may be issued “for the purpose of securing compliance with” certain requirements as delineated in (a) to (d).
Section 195 provides for reparation orders which may be made when the NRM authority or State authorised officer is “satisfied that a person has caused harm to any natural resource” by the contravention of the same statutory requirements as set out for protection orders in s 193(1) (a) to (d).
Unlike the essential statutory pre-requisite of actual harm for a reparation order, there is no such express statutory requirement for actual harm to have been caused before a protection order could be issued. However, given that the purpose for the issue of a protection order is to ‘secure compliance’ with a specified section of the NRMA, it would not be surprising that an authority, in deciding whether there was a breach or non-compliance with the specific provisions of the NRMA and whether a protection order should be made, would be more readily persuaded to issue such an order if there was evidence of actual harm.
Alternatively, if activities have not yet taken place, but are anticipated, then evidence of actual damage would be unavailable. Further, in situations of anticipatory breach or non-compliance, there may be a number of variables such as the precise nature, conditions and timing of potential activities. As a matter of practice it would not be surprising if the authority would be less likely to be persuaded to issue a protection order if there is insufficient evidence of likelihood of actual harm occurring from potential activities. The issuing of protection orders are an exercise of discretion and the orders are required to be specific in their conditions, as indicated by the provisions of s 193(2)(d). Therefore, as a matter of practicality, the observation of the ERDC about the typical circumstance in which they may be issued, does not appear on its face to be inaccurate.
Even if the ERDC was not strictly correct in its observation, it is important to bear in mind the purpose for which the ERDC drew attention to protection orders, reparation orders, reparation authorisations and action plans under the NRMA. It was to point out at paragraph [19]:
19 … One of the practical difficulties in protecting natural watercourses arises from the time which may elapse between the commencement of the excessive usage of water and the manifestations of any observable effects of that excessive usage. The complexity of the environment and its changeable nature make the investigation of the cause of detrimental effects (which may themselves change according to the conditions) a difficult undertaking. A user may therefore cause a detrimental effect, perhaps over a significant period of time without intending to.
It is for these reasons that a protection order is less likely to be effective to protect the environment in circumstances where there is insufficient certainty of harm. In particular, whilst the NRMA is comprehensive, it does not exclude the operation of Objective 40, which requires consideration and evaluation to be made of the effect of a proposed development on the long-term reliability of water resources. This is an anticipatory process of assessment and not a reactive response of protection after a breach or non-compliance with provisions of the NRMA. The emphasis and processes differ.
In addition the ERD Court stated in [21]:
We are fully cognizant of the provisions of the Natural Resources Management Act and we bear them in mind in undertaking the planning assessment of the proposed development afresh. We note that there is no provision of the Natural Resources Management Act which requires the referral of a development application to the Minister for Environment and Conservation for the assessment of the likely environmental impact of a proposal which involves the taking of water from an area which is not a prescribed area. That task must be performed by the relevant authority under the Development Act with reference to the relevant provisions of the Development Plan. The decision of Doyle CJ in Tuna Boat Owners Association of SA Inc v Development Assessment Commission & Anor (2000) 77 SASR 369 supports this approach.
In my view, the ERDC carried out an analysis of the potential differing fields of operation between the NRMA and the assessment of development proposals under the Development Act and Development Plan. No error is disclosed.
Development Plan
The appellant argued that the ERDC had not given sufficient regard or weight to other Objectives in the Development Plan, other than Objective 40. It was submitted there had been simply a recitation of other relevant Objectives, together with the objects of the Development Act in s 3, with no analysis. In addition, it was submitted that the ERDC was in error in calling in aid General Farming Zone Principle 4 and Council-wide principles 119, 121 and 127.
In considering these arguments, I start by noting that the Full Court did not indicate that Objective 40 could not be determinative of the proposed development application. The Full Court was concerned to ensure that other Objectives were properly taken into account, given their proper weight, and not simply overlooked.
The ERDC began quite correctly, in reciting all of the Objectives and Principles of the Development Plan, which it considered to be relevant. There is no suggestion by the appellant that any relevant Objectives or Principles were omitted.
In paragraph [33] of its reasons, the ERDC concluded that the proposed development in fact complied with many of the relevant provisions of the Development Plan. It noted that it was “an appropriate land use for the area”. It also considered that it “will not cause a nuisance by reason of dust, noise and appearance”. The ERDC also satisfied itself that “the arrangements for the disposal of waste and run-off from the feedlot are satisfactory”. Further, it indicated that it was “unlikely that ground or surface water pollution will result from the land use”. The ERDC also noted that “traffic arrangements are satisfactory”. In paragraph [35] the ERDC concluded that the “proposed development is therefore in compliance with Council-wide Objective 7”.
In the net result, taking into account the relevant Objectives and the Principles, it concluded that the only Objective which had not been complied with was Objective 40. It indicated in paragraph [36] that the proposed development would contravene Objective 40 because “instead of protecting the Burra Creek Catchment from overuse, it would expose the Catchment to a significant risk of overuse and consequent harm”. It also indicated that this conclusion of significant risk was based on the evidence of Dr Muller, Mr Phillips, Mr Strachan and Mr Falkenberg.
Such a conclusion is not inconsistent with the Full Court’s reasoning, and in my view it was open on the evidence for the ERDC to so conclude. This decision is made in a context in which earlier in its reasons it noted that the NRMA was not the exclusive protector of the environment, and although comprehensive, it was not necessarily complete. It has had regard to the matters to which the Court directed its attention, and its process has been articulated. The importance of Objective 40 in assessment of the proposal was fortified by its references to other complementary Principles which were the subject of the further argument.
The appellant argues that Principle 4 of the General Farming Zone and Council-wide Principles 119, 121 and 127 are not relevant to sustainability of water resources in relation to a development proposal; they are amenity issues which could not justify a refusal of the proposed development.
In my view, it is important to consider the way in which the ERDC used these principles. The ERDC indicated at [27] that Principles 1, 2 and 4 were “directly relevant to the assessment of the proposed development”. It concluded in [37] that the proposal was contrary to Principle 4, after it had already decided that the proposal would contravene Objective 40. The ERDC does not purport to use the Principle as conclusive in its own right, but instead uses it to reinforce the importance of Objective 40, and to support its own conclusion.
In relation to the Council-wide Principles 119, 121 and 127, the ERDC noted that these three Principles were “directly relevant”, their theme being that “intensive animal keeping should not interfere with neighbouring land uses”. The ERDC stated that while potential direct effects are avoided because of the proposal’s remote location, its concern was with the indirect effects on locality and community. The ERDC referred to the evidence of Dr Muller, and stated:
38 … the proposal has significant potential to have a seriously adverse impact upon existing land uses in the locality by means of its likely impact upon the availability of groundwater and its potential to damage the underground water systems. The proposed development does not minimise adverse impact on the natural environment as required by Principle 119, it poses a risk to the wellbeing of the community contrary to principle 121(b) and it has the potential to adversely affect the amenity of the locality contrary to Principle 127 by contributing to the decline in the environmental flows in the catchment system, with consequent damage to native flora …
The ERDC then observes that, “An adverse effect of this nature would have widespread economic effects for the community, as well has having environmental effects”.
Again, these Principles are used to support its conclusions about the importance and relevance of Objective 40 to its assessment. These Principles in their various ways, demonstrate the importance of assessing the impact of developments, not simply on the immediate neighbourhood, but also having regard to locality and community in a broader sense. As the ERDC noted at [38]:
In this assessment, as in any planning assessment, we are predicting likely future impacts which can rarely be predicted with absolute certainty. A planning assessment is, to some extent, an assessment of risk.
I reject the submission of Mr Hayes that the Principles of the Development Council can simply be characterised and therefore dismissed as being relevant only to ‘amenity issues’. In my view this is a narrow interpretation and the meaning of locality and community should not be interpreted in such a limited fashion.
In my view the ERDC is not in error in the use to which it puts the Principles, or in any of its reasoning.
Precautionary principle
Mr Hayes submitted that the ERDC had failed to comply with the Full Court reasoning with regard to the application of the precautionary principle. He submitted that the Full Court had in its reasoning, as he interpreted it, indicated that ‘there is no room for the precautionary principle here when you have a comprehensive Natural Resources Management Act in place’. Mr Hayes reasoned this from paragraph [77] of the Full Court reasons which said as follows:
When the objectives of the Development Plan and the relevant statutory regimes are assessed, it may be that a lack of information and alternate statutory oversight justifies the application of the precautionary approach. Insufficient data may lead an authority to the conclusion that there is insufficient evidence to confirm or deny that water use in the region is sustainable and, therefore, to protect water sustainability the application should be rejected. In this instance, however, the Act provides a comprehensive regime to investigate, monitor and control water sustainability. The ERD Court erred in that it relied upon the evidence of Dr Muller and gave undue weight to the precautionary principle, without giving sufficient regard to the other factors to which I have referred
The Full Court did not in this passage, nor any other, conclude that the precautionary principle had no application to the assessment of a development proposal under the Development Act, and Development Plan. On the contrary, the Full Court affirmed the approach taken in Tuna Boat Owners Association of SA (Inc.) v Development Assessment Commission (2000) 77 SASR 369, and expressly indicated that a lack of information may justify the application of the precautionary approach. At the same time, the Full Court noted that in deciding the weight to be given to the precautionary principle, the decision-maker should have regard to the protections available under the NRMA and its comprehensive regime. It did not indicate that the NRMA regime was exclusive. The Full Court previously heard argument on the earlier appeal regarding the application of the precautionary principle, but it was in the context of it being based on an erroneous foundation, namely the interpretation by the ERDC that Dr Muller’s evidence was that the water use was unsustainable. The Full Court did not state that the precautionary principle could not apply either generally, or in this case, to assessing a development application pursuant to the Development Act and the Development Plan. Nor did the Full Court express the view that the evidence which the ERDC had before it, would have been inadequate to sustain such an argument or application. This was a matter left to the subsequent assessment of the ERDC on a rehearing.
There is no error of principle in the approach taken by the ERDC. The conclusion reached by the ERDC of significant risk of overuse of water is supported by the evidence of Dr Muller and other evidence previously mentioned. Whilst their evidence was insufficient to support a conclusion of unsustainable water use, it was sufficient to support a conclusion of significant risk of serious harm due to water overuse, coupled with current scientific uncertainty about the extent of environmental harm, attracting the precautionary principle.[1] There is no error in the ERDC preferring the evidence of Dr Muller to that of Mr Howe.
[1] Telstra Corp Ltd v Hornsby Shire Council (2006) 146 LGERA 10, 38-45.
Conclusion
In my view, none of the arguments proffered by the appellant discloses error by the ERDC. The mere fact that there was the same outcome, namely that the proposed development should not be granted provisional Development Plan consent pursuant to the Development Act, by reason of the evidence of Dr Muller, Mr Phillips, Mr Strachan and Mr Falkenberg, does not disclose error. The matters which the Full Court required to be addressed were addressed, and this was a decision which was open to the ERDC to make.
In my view the appeal should be dismissed.