Environment and Planning Law Essay Example

  • Category:
    Law
  • Document type:
    Essay
  • Level:
    Undergraduate
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    5
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    3205

Environment and Planning Law 2

Environment and Planning Law

Land is the most natural resource that works to promote development and growth of all the natural resources. The reason behind this is that land is very well connected with all the other natural resources in such a way that they supplement each other’s productivity. The lands surface and its subsurface promote economic growth as a result of development of different projects. This use of land leads to environmental degradation which needs to be checked so as to protect the environment. It is hard to put clear distinction between environmental harm and economic growth. The reason behind this is that in achieving economic growth environment will be degraded in one way or another. This calls for proper planning on environmental and land use so as to minimise the adverse effects of economic growth which comes as a result of land use. Therefore, the economic value of each development project undertaken should be weighed against the effects it brings to the environment through emissions. The effects of a project should not be more than the advantages of a project because this will be a negative project. Therefore, Majura highway project should be weighed in a way that it will not affect the natural habitats and the area in general. The economic value should be measured against the impact it brings to legless lizard which is an endangered species at Common Wealth and ACT levels and two threatened ecological communities. The rights of Save Majura group also need to be put into consideration.

According to section 6 of The Planning and Development Act 2007 (ACT)there is need to have a planning and land system that will work to ensure that there is an orderly and sustainable development of the planning and development act. The ACT requires the planning to put into considerations aspirations of the people in regards to social, economic and environmental aspects which are in line with financial principles. The ACT requires any act to put into considerations the way it affects the people. Section 7 of the Act defines development in relation to land as carrying out earthworks that may involve demolishing an already existing structure, altering or even building on or under land. According to the ACT the word ‘use’ of land, building or any structure on the land means starting a new use of land, building of a structure or even to continue with the current use of the land this has been laid down in section 8.

The Act also defines sustainable development as where social, environmental and social aspects are put into considerations while making any decisions. This is achievable through the laid down principles of precautionary, intergenerational equity, conserving biological diversity, having ecological integrity and pricing and appropriation of natural resources. The Act also defines the individual principles. The inter-generational principle means that the current generation should take care and conserve the environment for the sake of future generations. Therefore, according to this principle the resources should be used equitably putting the future generations into considerations. The precautionary principle means that lack of scientific certainty should not be used as a way of postponing measures to prevent environmental degradation because this could cause irreversible environmental damage. This principle works to ensure that sustainable development is put into consideration while making decisions.

Planning law has been an international commitment by ensuring there is proper planning. The law also requires establishment of planning schemes and requires every planning to have permission and developments to have approval. Planning law requires every planning to put into considerations nature conservation, amenity, sustainability and the environment in general. International commitment to planning is well stipulated in Stockholm Declaration of 1972. The Stockholm Declaration requires proper planning in use of resources so as to preserve them for the use of future generations. According to principle 13 states that in order to achieve a more rational management of resources and thus to improve the environment, countries should adopt an integrated and co-ordinated approach to their development planning so as to ensure that development is compatible with the need to protect and improve the human environment. Principle 14 of the Stockholm Declaration states that rational planning constitutes an important tool for reconciling any conflict that may arise as a result of needs of development and the need to protect and improve the environment. According to the principle 15 planning must be applied to human settlements and urbanization with a view to avoiding negative effects to the environment as well as attaining maximum social, environmental and economic gains for all. Environmental sustainability has been an international issue which has been a UN agenda in the Earth Summit in a conference on environmental and development 1992 and Rio Declaration. The principle 3 of the declaration ‘states that the right to development must be fulfilled so as to equitably meet developmental and environmental needs of the present and future generations’. Principle 4 of the Earth summit states that’ in order to achieve sustainable development there must be protection of the environment which should constitute an integral part of the development process and should not be considered in isolation’.

Principle 8 states that, countries should promote appropriate demographic policies. They should also work in reducing and eliminating unsustainable patterns of production and consumption so as achieve sustainable development and a higher quality of life for all people. According to section 7.30 all countries should put in place a national land resource management plans to guide the development of resources and utilization of land. This would be possible if the countries develop fiscal incentives and land use control measures including land use planning solutions for a more rational and environmentally sound use of limited land resources. Section 7.52 advocates for efficient and environmentally sound urban transport systems in all countries should be a comprehensive approach to urban transport planning and management. Therefore, countries should integrate land use and transportation planning to encourage development patterns which reduce transport demand. The countries should also adopt urban transport programmes favouring high-occupancy public transport in countries as appropriate. The countries should also work to encourage use of non-motorized modes of transport. The countries should also reduce use of energy and national resources through re-evaluation of present consumption and production patterns. Therefore, these are principles that should be considered during the approval of the Majura project.

It is important for the Minister of ACT to strike a balance between social, environmental and economic consideration while making decisions. In this case we are aware that the Majura project will be a great boost to the transport of the country by connecting with other highways. The project will have a great impact on the environment and this has been the concern of the surrounding community. Although the project promotes ecologically sustainable development that includes integration of environmental, economic, social, intergenerational equity, precautionary principles it is still a threat to the habitats. From all this aspects we can tell that Majura project is a development one because a structure will be constructed on the land meaning that the land will be used. The land has a long term Crown lease. This means that the Crown has the ability to influence management of land by the way of leasing. Section 50 0f the Act states the authorities that are involved with approval of projects must not pass any project that is inconsistent with the Territory Plan. The approval authorities include Australian Capital Territory, minister, the Territory and the executive. The Territory Plan works to ensure that all the projects are in line with the national capital plan which requires provision of an attractive, safe and efficient environment to live, work and have a proper recreation. The Territory Plan must give the object of ensuring the effect of sustainable principles by setting out planning principles and policies. Therefore, in the case the Territory Plan by setting the objectives of the project where the project has to be constructed in Majura area. This state that no development projects that will be put in place that will adversely affects the environment. The project involves major utility installation which is the construction of the road and all the other structures involved.

Australian Capital Territory (Planning and Land Management) Act 1988 (Cth) requires strategic planning before Crown land can be put to a particular use, in this case, the land is being used for construction of a road. Planning schemes are a form of delegated legislation, which for this case is delegated to the Planning and Land Authority whose role is to plan and regulate the development of land (Planning and Development Act
2007 (ACT) s 12(1)(c)). This development may adversely affect the environmental quality of the locality through destroying the habitat for the Legless Lizards and it may also undermine the future use because the road construction is near Duntron Wool Shed which is a national heritage which should be preserved for future generations. The approvals of this project will public notification where there views will be taken and put into considerations. This is well stipulated under schedule 4 of the planning and Development Act 2007 (2007) this has been referred to as merit or impact track.

The scheme in place to deal with this issue was developed by the ACT Planning and Land Authority (ACTPLA) and is entrenched in Planning and Development Act 2007 (ACT)). Therefore, the minister needs to ensure that all the procedures for approval have been reached. Therefore, the minister needs to refer Territory Plan section 57 so as to direct ACT Planning and Land Authority (ACTPLA) on the issue. The minister can also direct ACTPLA to revise the scheme so as to include the views raised by the general public which have been invited through a consultation notice. After the consultation notice have been put in place this is where Save Majura group will present its views and complains. The ACTPLA will consider the public views especially the Save Majura Group after this is done the planning authority will either revise the plan or withdraw it; this is according to section 57. The planning authority will then handover the plan to the minister for approval. The minister will also hand it over to the legislative assembly for review.

To solve the issue of John’s property being exposed to noise there is need to refer to common law so as to get guidelines on the issue. Common law is the part of law which has been developed from case law and precedents. It is the part of law that contrasts with equity. Common law is very important because it helps in interpretation of the statutes. It also makes it easy to solve issues because common law rules remain unless it is altered by statutes. Common law also underpins and protects many fundamental social structures such as respect for private property. Common law is important in solving this case because it offers remedy and equity which are available to private landowners to protect environments from damage and interference. Common law is also important because it protects rights against bureaucratic excesses of power as well as guarding against breach of environmental legislation. It is mainly used when one is seeking damages. The common law protects ownership of property and ensures that owners of property enjoy them without interference. Therefore, in this case John can seek the help of the common law in protecting his property. The common law protects individuals’ property against trespass, nuisance and negligence. In this case John should rely on nuisance as a way of seeking justice and protecting his property. This part of common law is divided into private and public nuisance. Private nuisance protects against unreasonable interference with another person’s ordinary and reasonable use of their landWalter v Selfe (1851). In this case unreasonable interference means that it involves going against the customary land use in that area. This protects only ordinary and reasonable uses of land. This part of common law works to protect property in the land. It also extends to protect against odours, dust, noise, light, vibrations, tree, roots and sewage among others. In this case the first issue is that the use of land in constructing a highway is not the ordinary use of land in that area. This is well supported by Environmental Protection Act 1997 that ensures individuals and their properties are well protected. The Environmental Protection Act 1997 does not protect property against the noise that results from moving vehicles. This means that John will not be protected from the noise that will result after the highway is complete. Therefore, he should lodge his complains before the commencement of the project so as to ensure that he gets protects. The remedies that the common law offers include injunctions which mean that the project will be stopped from commencing.

In regards to the fourth issue that is raised in this case there is need to apply environment law because it is an issue of air pollution. The concern of the people is the emissions which will be emitted to the air by the machinery which will be used in construction of the highway. The machinery will be using a lot of diesel in a day which will result to a lot of emissions. This will result to air pollution. This calls for minister’s attention and to make a decision regarding this issue. In deciding this issue the minister should use The Planning and Development Act 2007 (ACT) and The Environment Protection Act 1997 (ACT). The Environment Protection Act 1997 (ACT) has been charged with the duties of protecting and enhancing the quality of environment. This is achieved by preventing any environmental degradation and the negative effects that will affect human health and the health ecosystem by ensuring that there is pollution prevention, safe technology for production, recycling, and waste minimisation programs so as to ensure people who pollute reduce on their emissions. There are standards which have been set and therefore, the minister must refer to the guidelines which have been laid down in the environmental ACT. The Air Environment Protection Policy lays down policies which must be followed so as to manage the ambient air quality and pollutant emissions to the environment. This is to ensure that air quality standards are met without degrading the environment. The emissions are regulated so as to ensure that there is no harm in the environment. This is stated in the section 5 of the ACT where an emission is taken to be harmful if the pollutant entering the environment exceeds the set standard. Therefore, the greatest issue will be to determine if the emissions from the machinery meet the set standards. These emissions will have future impact to the environment in the long run. The emissions will meet the required set standards. The minister needs to ensure that there is an Environmental impact statement which is a way of investigating the harm an environment will have to the environment. This will help the minister in making the right decision in regards to the matter.

Question 4

‘Pollution discharge licensing law cures the failings of the common law in pollution law’

Pollution ranges from air pollution, land, noise and water pollution. The common law has failed in introducing ways in which pollution could not be controlled or minimised. The international community is aware that it is impossible to stop pollution because there is need for development and production which result to economic growth, Environmental Protection Act 1997. Therefore, there is need to come up with ways to control pollution to the acceptable standards which will not be harmful to the environment and therefore, comprising the future use of natural resources. The common law has failed in setting the acceptable limits that could not be harmful to the environment. It has also failed in coming up with the ways or even a measure for the emissions.

The pollution discharge licensing law has made it possible to control the emissions that a company or an individual emits to the environment because there are set standards. This license makes the companies responsible in what they release to the environment because a company is required to pay so as to emit to the environment, Environmental Protection Act 1997. There are set standards of pollution when exceeded a company is supposed to pay for the extra emissions. This means that the companies are being forced to be responsible and have to avoid extra emissions because this will be reducing their profits. A company that exceeds its allowed emissions two times consecutively is fined and has to pay for an expensive license.

The pollution discharge licensing ensures that pollution is minimised in all ways possible. Therefore, all the activities that could threaten the environment are reviewed so as to ensure the adverse effects are minimal, Australian Capital Territory. The licensing procedures ensure that the offending parties are heavily fined in monetary terms so as to discourage future offences. The licensing policy was put in place so as to ensure that the problems encountered by common law are eliminated. The common law did not have ways of measuring the level of pollution but now this has become an international concern and many countries have come together so as to solve this problem, Environmental Protection Act 1997. The countries have come up with the pollution discharge licensing policy as a standard tool that will ensure pollution is reduced. Domestically Environment Planning Authority had been incapacitated in reducing emissions because it did not have a standard to measure the level of pollution. The ways brought forward by common law especially the bubble permits could not control pollution in any way because there was no limit a company could purchase, Environmental Protection Act 1997. Therefore, a company could buy a bubble permit whenever they wanted to pollute the environment. Therefore, the establishment of the bubble permits meant that the company were free to pollute the environment as long as they had the bubble permit. The EPA did not have the authority penalise any offenders because it did not the capacity to do so. The reason behind this is that it could not measure the level of pollution by a certain company or an individual. Therefore, with the introduction of the pollution discharge licensing the set standard of emission becomes the limit over a company is penalised.

In conclusion, pollution discharge licenses have worked towards ensuring that pollution is reduced by making the companies responsible for the emissions they release to the environment. The company do not want to lose their licenses by exceeding the set limits of the emissions and therefore, they tend to control to maintain the set standards. The reason behind this is that the more the company emits the more expensive it becomes for the company. The common law had failed to provide a standard measure that could be used to measure the emissions and this made it very hard to control pollution. Therefore, pollution discharge licensing is a key establishment as far as pollution is concerned. The reason behind this is that companies are made to become responsible on the level of their emission because any extra emission is expensive for them.