The Precautionary Principle – M.H. Earthmoving Pty Ltd v Cootamundra-Gundagai Regional Council

On 27 September 2018, the Land and Environment Court discussed the precautionary principle in an appeal relating to the expansion of a landfill facility.

The precautionary principle

The precautionary principle has risen to a pre-eminent position in Class 1 merits appeals in the Land and Environment Court when the issue of ecologically sustainable development arises. It is triggered when two conditions are satisfied:

Condition 1: there is a threat of serious or irreversible damage; and

Condition 2: there is scientific uncertainty as to the nature and scope of environmental damage.

If this test is passed, the precautionary principle requires that the decision-maker must assume that the threat of serious or irreversible damage is real unless proven otherwise. The need to take precautionary measures arises, but those measures must be proportionate to the level of the threat. The more significant and the more uncertain the threat, the greater the degree of precaution required.

Expert witnesses assist the Land and Environment Court in its assessment of these conditions, and the Land and Environment Court relies on their specialised knowledge when making inferences about the scientific uncertainty of environmental damage.

The proposal and court observations

The proposed development sought consent for the expansion of an existing landfill facility in Gundagai. The purpose for doing so was to “extend the operational life of the facility for a further 12-15 years”.

Particular concerns were raised about the impact of the expanded facility on groundwater in the area.

The Land and Environment Court considered expert evidence from hydrogeologists, and found that while there was a risk of leachate in the groundwater, there was insufficient evidence to establish the environmental harm and damage to the users of the groundwater (condition 1 of the test). Although one of the experts put forward that contaminated groundwater may impact stock quality, livestock accreditation, bore licences, property prices and cause general economic harm, none of this evidence was supported by further documentation. Accordingly, the Land and Environment Court found that there was insufficient evidence to satisfy condition 1 and the precautionary principle was not triggered.

Final thoughts

The scientific and technical nature of environmental disputes means that expert evidence must be relied on to evaluate scientific uncertainty and apply precautionary measures. Accordingly, if the precautionary principle is to be engaged as part of the assessment of a development, sufficient evidence must be put forward to establish (or otherwise) the threat and possible environmental impacts.

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Alyce is a civil engineer and a practicing lawyer, who has a desire to share her insights on the legal and practical realities of the development industry.

One thought on “The Precautionary Principle – M.H. Earthmoving Pty Ltd v Cootamundra-Gundagai Regional Council

  1. So if the precautionary principle applies to known unknowns, then the court may also opt to apply it very easily to unknown unknowns! A safe haven for the indecisive!!!

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