New directions in the prevention and resolution of environmental disputes - specialist environmental courts
The Hon. Justice Paul L. Stein AM
Judge, NSW Court of Appeal
Sydney, NSW, Australia
Delivered in Manila 6 March 1999 to "The South-East Asian Regional Symposium On The Judiciary And The Law Of Sustainable Development"
Sponsored By UNEP/UNDP, Hanns Seidal Foundation And The Government Of The Philippines
Contents
The Context
Environmental decision-making and the establishment
of the Land and Environment Court
Public Participation
Jurisdiction of the Land and Environment Court
* Merit appeals - Classes 1 and 2
* Legal questions
* Class 3 (miscellaneous appeals)
* Crime - Classes 5 and 6
* Civil Enforcement and Judicial Review (Class 4)
Standing
Procedural Issues
* Undertakings as to damages
* Pleadings
* Discovery and inspection of documents; interrogatories
* Laches, acquiescence and delay (equitable defences)
* Preclusive clauses and certificates
* Discretion
* Security for costs
* Costs
Substantive Law
* Overview
* Biodiversity
* ESD principles
* Public participation
* Public Trust doctrine
* Pollution Law
* Scrutiny of EIS's
* SEPPs and new legislation
ADR and concept of the courts as a modern forum for Dispute
Resolution
Advantages of a Specialist Environmental Court
Independence and Inherent Jurisdiction
Damages
Circumventing the Court
Other Australian Jurisdictions
Conclusions
End Notes
THE CONTEXT
1. New South Wales is the most populous Australian State containing one-third of the nation's population (6 million + out of 18 million +). Sydney is its capital and sprawls for 70 km to the west from the Pacific Ocean to the Blue Mountains. Its population is around 4 million and the venue for the year 2000 Olympic Games. New South Wales is a large but by no means the largest Australian State, having an area in excess of 800,000 km2 (Australia is 7.7 million km2 ).
2. Australia is a truly multi-cultural society containing immigrants from almost every country in the world, large numbers arriving since World War 2. Many have English as their second language. It is also home for a significant number of indigenous Aboriginal people, the descendants of the original inhabitants of the continent. European settlement began only in 1788, a little over 200 years ago, and then as a convict colony for Great Britain. Australia's population includes many people from South-East Asia.
3. Given its size and spread of latitude, it is unsurprising that Australia contains an amazing diversity of climate and land-form. From tropical rainforest to temperate climes, as well as large arid and semi-arid tracts of land and desert. It is a country of extremes, which alternately suffers from drought, bushfire, flood and cyclones, sometimes all in the one year. Its unique flora and fauna is well known and partly attributable to the relative isolation of the island continent, its comparatively small population and a lower level of development than many other parts of the developed world.
4. In social terms Australia, despite its size and the ethos of the 'bush pioneer', is a highly urbanised society with 80% of the population living in the cities and large towns in the fertile south-east. Australia is a federal state with law-making powers shared under the Constitution between the Commonwealth Government, the States and the Territories. The shared powers include the making of laws affecting the environment. In turn, the States have established local government as a third tier of government. Land-use planning and resource exploitation is generally the responsibility of state and local government. The court system reflects the same dichotomy between the States and the Commonwealth, ie separate state courts and federal courts. The High Court of Australia stands at the apex of the judicial system.
5. As a consequence of the shared powers of law-making, New South Wales (indeed Australia) does not have a single unified code of Environmental Law. Rather, Environmental Law consists of an accumulation of environmental statutes, regulations, policies and practices, together with judicial interpretation thereon, as well as the overlay of the common law, eg. nuisance, negligence and land law.
6. It should not however be thought that Australia's relative isolation as an island continent means that it has few environmental problems. On the contrary, barely 200 years of European settlement has bequeathed a myriad of environmental problems. For example, our soils (which are old, thin, and of poor fertility) have been severely eroded and, in some cases, literally blown away, by land-clearing, over-grazing and, until relatively recently, poor farming practices. Significant areas of rural land is salt laden due to a rising water table. The cities, in particular Sydney, suffer from poor air quality, polluted harbours and water-ways and land-based pollution from disposal of waste, including dangerous and toxic substances. Many of our coastal and interior wetlands have been filled or degraded, causing a loss of diversity of fauna and flora. This loss of biodiversity has also resulted from agriculture, mining, forestry, tourism and urban development and expansion.1 Failure to protect historic and cultural heritage has meant the loss of much of our relatively short colonial history and much Aboriginal culture and religion, which is acknowledged to reach back at least 60,000 years. Our 'home made' environmental disasters may not be comparable to Bhopal, Chernobyl, Exxon Valdez or acid rain, but in cumulative environmental terms they are evidence that we are no longer the 'lucky country' many would have us believe.2
7. This brief discourse forms the context for an examination of the creation and role of the NSW Land and Environment Court (the LEC), a specialist court created to deal with all manner of environmental disputes.
8. Decisions of all kinds which effect the environment are made by numerous different decision-makers in agencies within the various levels of government in New South Wales. Many emanate from local government; a number of decisions are made by central government agencies and an increasing number by Ministers of the State.
9. Granted that most mature planning and environmental law systems accept that a person aggrieved by a decision should have a right of appeal, the next step to consider is to consider the nature of that appeal process. This paper is about the fundamentals of such an appeal system and the reasons therefor. While it concentrates on the NSW experience of the Land and Environment Court, now in its 19th year, it is not argued that it necessarily provides the perfect model. Nonetheless, it encompasses the majority of what many regard as the necessary attributes of a fair and efficient environmental appeals system.
10. The starting point for examination is the content of Environmental Law. While it may involve many private disputes, it must be kept steadily in mind that its substance and content is indubitably that of Public Law. That is, decisions have implications, not only for the immediate parties, but for the broader community and the environment itself. The public interest almost always comes into play in adjudicating any environmental dispute.
11. The fundamental principle must be that appeals or challenges, whether by applicants or third parties, must be to a tribunal independent of the Executive. The Executive will not, indeed cannot, conform to the Common Law requirements of procedural fairness or the rules of natural justice. The hearing, if there be one, is not going to be in public. It will be in private. There can be no right to call witnesses or to cross-examine. There can be no right of access to documents. There is likely to be no written reasons provided for a decision and no right of appeal, even for error of law. Such a system not only excludes public participation but inevitably, however honestly administered, will draw fire for its secrecy and suspicion of bias and pre-determination or corruption. It patently lacks any transparency. Moreover, such a system will never produce consistency of decision-making, nor make any contribution to the development of a body of legal principle so necessary for the development of Environmental Law.
12. Certain principles of a fair environmental appeal system may be regarded as essential. These include:
* independence of the appellate tribunal from the Executive arm of government
* proceedings must take place in public
* procedural fairness and obedience to the rules of natural justice
* comprehensive and integrated jurisdiction to avoid delay and duplication
* ease of access and relative informality to assist in public participation and contain costs
* expertise of adjudicators and capability for panel hearings for appropriate disputes
* elucidation of 'real' issues in dispute
* early access to documents including government documents
* reasons for decision to be given
* efficiency of tribunal processes and speed of decision-making
* appeals on questions of law to a higher court
* enforcement mechanisms which are simple, speedy and efficient
* availability of full range of alternative dispute resolution (ADR) mechanisms to allow choice to litigants
13. I would not be so bold or presumptuous as to suggest what path any State should follow. Rather, my task is to describe the NSW experience in order that decision-makers in the government, bureaucracy and judiciary may, hopefully, receive some benefit from our bold experiment.
ENVIRONMENTAL DECISION-MAKING AND THE ESTABLISHMENT OF THE LAND AND ENVIRONMENT COURT
14. Decisions of all kinds which affect the environment are made by numerous different decision-makers in agencies within the various levels of government. As I have said, many emanate from local government; a number of decisions are made by central government agencies and an increasing number by Ministers of the State. The vast majority of these decisions can be appealed to the Land and Environment Court which, in administrative appeals, stands in the shoes of the decision-maker.
15. With the long overdue modernisation of the system of environmental planning in NSW in 1979, paralleled by the creation of a specialist environmental court, a unique opportunity arose for a new style of administration of Public Law. The legislation was innovative in many ways, as was the new court. Would the court be able to respond to the challenge?3 Both the Environmental Planning and Assessment Act 1979 (the EPA Act) and the cognate and complementary Land and Environment Court Act 1979 (the LEC Act) provided the opportunity for an almost completely new substantive approach to planning and development (both public and private), as well as new procedural rules and opportunities.
16. One of the most important decisions made was to opt for a specialist court to administer the law, rather than an administrative tribunal. This was to prove a crucial decision at a time when Australian governments believed specialist tribunals to be attractive, cheap and speedy as compared to courts, which were perceived as anachronistic, expensive and delay-ridden. The State Government also decided to place the court at the top of the judicial hierarchy of trial courts, as a superior court of record equivalent in status to the Supreme Court and subject only to appeal to the Court of Appeal.4
17. With hindsight, I think that had a new tribunal been established, the previous cycle of fragmented (and incomplete) jurisdiction shared between various tribunals and the courts, would have continued.5 Indeed, the establishment of a specialist superior court (with judicial independence) has, I have no doubt, served as a bulwark against political attack.6
PUBLIC PARTICIPATION
18. One emphatic theme which ran through the comprehensive package of legislation was the right of the general public to participate in the process of environmental planning. This is a specific objective under s 5 of the EPA Act. The objective is strengthened by other provisions in the Act relating to environmental plan-making, third-party appeals and open standing in order to enforce compliance with environmental laws. The legislation was an effort to progress from narrow traditional town and country planning, largely based on the English experience, to a broader and more integrated assessment of environmental issues. It was also a recognition and acknowledgment of the importance of the environment and the development of Environmental Law, as well as the right of members of the general public to participate in the processes and in decision-making.
19. The establishment of the LEC in 1980 was a crucial ingredient in the initiative. The court was created as an integrated court of record with exclusive jurisdiction to determine disputes arising under some 26 separate environmental laws. These statutes make provision for the protection of the environment and include, inter alia, planning, waste management, hazardous chemicals, coastal protection, ozone protection, heritage conservation, national parks and wildlife protection, wilderness, marine pollution, biological control of organisms, and air, water and noise pollution. Other categories of the court's jurisdiction include land valuation and rating (taxation) appeals, building approvals and Aboriginal land rights, to name but a few.
20. Under the LEC Act, numerous fragmented jurisdictions were consolidated. Jurisdiction was no longer to be split between different courts, boards, tribunals and authorities. Rather, the court was given an extremely broad jurisdiction to hear all civil and criminal (summary) enforcement matters, judicial review and merit appeals relating to all aspects of land and the environment, viewed in a broad fashion. For the first time, in the environmental context, non-judicial members were included alongside judges in a court (as opposed to a tribunal). The LEC Act also contained significant procedural innovations in an attempt to make it more accessible and effective. It stressed the centrality of public participation in determining disputes.
JURISDICTION
21. A wide-ranging jurisdiction is exercised by judges and technical assessors, now known as Commissioners. The latter are not required to have legal qualifications (although some do) but must be qualified in fields such as planning, local government, land valuation, engineering, architecture, environmental sciences, natural resources and Aboriginal land rights. The work of the court is divided into six areas or classes which encompass administrative appeals, civil enforcement, judicial review, compensation for compulsory land acquisition, Aboriginal land rights and criminal enforcement and criminal appeals.
22. One important aspect of the 1979 package, which has proved popular, is the concept of a one-stop shop. The legislation combined virtually all existing jurisdictions relating to land and the environment. This required the court to have a division relating to administrative appeals from development, building and licence decisions of local councils, state agencies and boards. This is an original jurisdiction where applications are heard de novo, with (as mentioned) the court standing in the shoes of the decision-maker and exercising the decision-maker's powers.7 It is in this area that the expertise of full-time scientific and technical commissioners is utilised. They hear and determine cases singly or in panels of two, as well as assisting and advising judges in more complex and controversial matters. The court is directed to have regard to the public interest in determining appeals. In this area of jurisdiction, informality in receipt of evidence and examination of witnesses is the touchstone.8 However, informal procedures have not been relaxed to the extent of abandoning a traditional court framework and approach to adjudication.9 The rules of natural justice and procedural fairness require proceedings to observe a degree of formality. At the same time, a number of significant procedural rules of court (introduced in 1991) endeavour to ensure streamlined hearings and prompt decisions.10
23. One of the aspects of the one-stop shop, which has been universally applauded, is the ability to have legal questions arising in an administrative appeal determined quickly, without the delay and disruption of adjourning a case while an appeal is taken to another court. Commissioners may refer questions of law to a judge for an immediate answer.11 Also, appeals against errors of law by Commissioners are promptly heard by a judge of the court.12 It may be a tribute to the skills of Commissioners, as well as the effort of court registrars to isolate questions of law at an early stage in the process, which has lead to a comparatively small number of such appeals. In addition, judges have been loath to permit an appeal on factual findings to be disguised as an error of law.
24. The court was also given a wide jurisdiction to hear and determine appeals relating to rating (taxation) and valuation of land, as well as the assessment of compensation to landowners for the compulsory acquisition of their land for public purposes. Other important facets of jurisdiction includes Aboriginal Land Rights appeals, where a judge sits with two Aboriginal Assessors to determine land claims refused by the Government.13 Aboriginal assessors also sit and determine disputes within and between Land Councils.
25. Another important (and expanding) area of jurisdiction is summary criminal trials for environmental offences. This is the exclusive province of judges, who hear prosecutions by state agencies and local councils under at least 20 enactments concerning every aspect of land management and pollution.14 It is also possible for individual members of the public to bring criminal prosecutions, by leave of the court, alleging breaches of pollution legislation. These have been few in number but the existence of the right acts as an impetus for the lead agency, the Environment Protection Authority (the EPA) and other agencies, to be vigilant in prosecuting breaches.15 The maximum monetary penalty the court may impose is A$1,000,000 and/or 2 years imprisonment. Remedial orders and the payment of compensation may be directed. The prosecutor may elect to proceed on indictment in the Supreme Court before a judge and jury if it is seeking a sentence of imprisonment of up to 7 years. It is important to note that no such trials have been initiated since the relevant statute commenced in 1989, the EPA preferring to prosecute in the LEC. The environmental court also hears appeals from magistrates decision's on environmental prosecutions.16
26. The number and range of environmental offences within the court's jurisdiction has continued to expand. The court's decisions (and those of the Court of Criminal Appeal) have made a significant contribution to the development of the law on environmental crime. I will return to this later.
- Civil enforcement and judicial review
27. Arguably the most important area of the court's jurisdiction is civil enforcement and judicial review by the judges of the court. The innovation of 'open standing' provisions and the elevation of public participation meant that the court would have to respond to an entirely new situation not hither to faced by the courts. This was Public Law in action. No longer would the court have to wrestle with sterile and expensive arguments of locus standi. That hurdle no longer needed to be jumped.
STANDING
28. An early test of the open standing provisions was whether the court would seek to construe the new provisions narrowly. Would the prophets of doom be right and the floodgates of litigation open and deluge the new court? Would the court be able to adapt to the new opportunities for public interest litigation or would the twin hurdles of the giving of undertakings as to damages and costs trip and thwart the new public participation rights? Many of these questions have by now been answered, although some remain to be finally determined.
29. Floodgates and the reality: Court statistics reveal that the number of proceedings brought by individual citizens or NGO's under the various statutory open standing provisions17 have never exceeded 20% of registrations for civil enforcement and judicial review in any year. The balance of applications are by local councils and state agencies. It must also be kept in mind that of the 20%, an unknown percentage would, in any event, have had Common Law standing.
30. Early in the history of the court, some litigants were submitting that the 'any person' provision did not really change the law. It was argued that it was still necessary for the applicant to prove a 'relevant interest' in the subject matter of the proceedings. Submissions to this effect were rejected by Cripps J in cases in 1980 and 1981.18 The same argument was taken to the Court of Appeal in 1985 (Sydney City Council v BOMA) and rejected.19 The words of s 123 of the EPA Act 'whether or not any right of that person has been or may be infringed by or as a consequence of that breach' removed the restriction imposed by Boyce v Paddington Borough Council.20 The Court of Appeal held that there was no basis for reading down the words 'any person'. Priestley JA observed:
It is a convention that all people in NSW are subject to the same laws ... The convention is disturbed when individuals are observed by others to be breaking a law with impunity ... The observer who feels strongly enough about the particular breach may well ask, since all are subject to the same law, why should this person's breach of it be allowed, and if it should not be allowed, why should not it be dealt with at my instance.21
31. Since 1979 open standing provisions have been progressively extended to all environmental and planning statutes. In addition, 'any person', with the leave of the court, may bring proceedings to restrain a breach of any statute, if the breach is likely to cause harm to the environment.22 The need for leave has now been eliminated but the Protection of the Environment Operations Act 1997 has not yet been proclaimed to commence. Similar (but more qualified) open standing provisions have been adopted by other Australian states (eg. Queensland, Victoria, South Australia and Tasmania).
32. However, the availability of open standing provisions has highlighted the existence of other significant procedural hurdles inhibiting access to the court in environmental cases. Some of the rules and traditions derived from private law have thrown up these barriers. The question to be asked was, are they appropriate principles to apply to Public Law issues? In an address to the National Environmental Law Association in 1989 Toohey J (a former member of the High Court of Australia) drew attention to the need for procedural reform. Otherwise, as he observed, 'relaxing the traditional requirements for standing may be of little significance'. He made particular reference to the general rule that 'costs follow the event' of litigation. Toohey J said that there was little point in opening the doors of the courts if litigants cannot afford to enter, or are scared off by the devastating consequences for an NGO or individual of having to pay the costs of the successful party. As he stated, the opponent will often be a government instrumentality or wealthy private corporation. As to the reality of open standing, I have had the occasion to observe that the influx of litigants has been barely enough to 'wet the wellingtons'.
33. Because it is fundamental, I will return to the issue of costs a little later.23 Other potential barriers exist and I briefly address them. They include:
- undertakings as to damages on applications for interim injunctions
- discovery and inspection of documents and interrogatories
- final and conclusive certificates, ouster or preclusive clauses
- laches, acquiescence and delay (equitable defences)
PROCEDURAL ISSUES
- Undertakings as to damages
34. The ordinary rule (developed from private law litigation as opposed to Public Law) is that, other than in exceptional circumstances, the giving of an undertaking as to damages is a condition precedent to the granting of an interim injunction.24 The capacity of an individual or NGO to give such an undertaking is invariably limited, especially if the project is large and damages likely to be high.
35. From the mid-1980s, judges of the court would customarily make an inquiry of an applicant for interim relief as to whether an undertaking as to damages was forthcoming. In the event that it was not, this would become a factor to be taken into account in the balance of convenience in the exercise of the discretion to grant or withhold relief. The 'test' case in the court was Ross v State Rail Authority.25 Cripps J considered relevant judicial authorities in the UK and US.26 Turning to the Australian context, his Honour referred to Phelps v Western Mining27 and a statement by Deane J, then a judge of the Federal Court, that:
It is patently desirable that the legislature does not assume that traditional rules of the common law relating to locus to institute civil proceedings are universally appropriate to circumstances where laws are increasingly concerned with the attainment and maintenance of what are seen as desirable national economic and commercial objectives and standards and with the protection ... of the environment ... There is no merit in the erection of a curial ambush of shibboleths in which even a legislative intent evinced by words as clear as those used in s 80(1) (c) of the [Trade Practices] Act would lie entrapped.28
36. Cripps J noted the often quoted statement of Street CJ in Hannan v Elcom (No 3)29 that the task of the court was:
... to administer social justice in the enforcement of the legislative scheme of the Act. It is a task that travels far beyond administering justice inter partes. Section 123 totally removes the conventional requirement that relief is normally only granted at the wish of a person having sufficient interest in the matters sought to be litigated. It is open to any person to bring proceedings to remedy or restrain a breach of the Act. There could hardly be a clearer indication of the width of the adjudicative responsibilities of the Court.30
37. He also made reference to a similar situation arising under the Trade Practices Act 1974 (Cth) where in CBA v Insurance Brokers Association of Australia31 Bowen CJ (of the Federal Court) said:
The approach of the Court, I think, should be that it will inquire from a private person seeking an interim injunction whether he is willing to give an undertaking as to damages. The Court should then take into account on the balance of convenience the presence or absence of such an undertaking as one of the factors to be considered in exercising its discretion.32
38. His Honour adopted and followed Bowen CJ and stated the practice of the LEC, recording the fact that it had already been followed in a number of cases. Ross has stood for a decade or so, despite occasional rumblings.
- Overly complex or formal pleadings
39. While pleadings can assist in identifying and narrowing issues, they also have the capacity to complicate, obfuscate and unnecessarily add expense and delay to the finality of litigation. In the hands of a skilful (or not so skilful) pleader, they may be so profuse and technical as to defeat their real purpose and object.33 To avoid the pitfalls (or sometimes torture) of pleadings, the court determined to have no formal pleadings. Rather, each application (initiating process) would be required to precisely state the relief sought. In addition and where appropriate, particularly on judicial review, brief points of claim and defence are directed by the court. This has worked reasonably well. Further, issues of law are sought to be defined at an early stage in the litigation and well prior to the hearing. No 'ambush' is permitted.
- Discovery and inspection of documents and interrogatories
40. From its early days, the court perceived the need for more open access to documents and less frequent sterile arguments about privilege and relevance. It was better to get all of the documents out in the open at an early stage (especially in judicial review where cases are often determined on the documents) and to minimise adversarial posturing. A liberal approach was taken to discovery and inspection of documents and to the administration of interrogatories. Over the years, I think it may be said that attitudes to secrecy and professional, commercial-in-confidence and Crown privilege have softened. This has been spurred by freedom of information legislation.34 For the most part, local councils and state instrumentalities produce their files without the necessity for formal subpoenae. There was a time, in the early 1980's when Crown privilege was regularly raised before the court but today it is a rarity. Indeed, it has all but disappeared.
- Laches, acquiescence and delay (equitable defences)
41. The court has acknowledged that the equitable defences of laches, acquiescence and delay have limited relevance to Public Law, especially where standing has been liberalised. Likewise, estoppel against public authorities will be unlikely to block an applicant seeking to enforce breaches of Environmental Law.
- Preclusive clauses and certificates
42. It is reasonable to observe that the court has continued the tradition of judicial scepticism with a strict approach to preclusive or ouster clauses and certificates. This is exemplified by Aboriginal land rights litigation between 1985 and 1991 when judicial review in the court between the Government and Aboriginal Land Councils reached the proportions of trench warfare. Sensibly, the Government appears to have retreated and abandoned the use of preclusive certificates as a means of avoiding merit hearings on land rights appeals, no doubt partly because the court held that procedural fairness needed to be afforded to a land council prior to the issue of such a preclusive certificate.35
- Wide discretion as to the granting of relief
43. The court's wide discretion to grant or withhold relief, or to mould its orders to best fit the circumstances of the case, is a valuable tool to prevent injustice. The Court of Appeal has made it plain that the LEC may need to look beyond the parties themselves in order to properly exercise the discretion.36 Moreover, Warringah Shire Council v Sedevcic37 has directed attention to the need to consider, inter alia:
... a legislative purpose of upholding, in the normal case, the integrated and co-ordinated nature of planning law. Unless this is done, equal justice may not be secured. Private advantage may be won by a particular individual which others cannot enjoy. Damage may be done to the environment which it is the purpose of the orderly enforcement of environmental law to avoid.38
44. Kirby P (now a High Court justice) referred to 'the public interest in equal compliance with the law'.39
45. Ordering an applicant to provide security for costs has the obvious capacity to terminate litigation then and there. If the applicant is an individual or NGO and the respondent a Minister, government agency or wealthy corporation, the disparity is obvious. Therefore, the ordering of security for costs has the capacity to stifle public interest litigation, almost before it has been launched. The court, accordingly, adopted a policy of closely scrutinising applications for security. As a result, such applications have been comparatively few and rarely successful. Pearlman CJ emphasised the importance of the public interest nature of litigation to the discretion to order security in the so-called Club Med case.40
46. In addition, impecuniosity of an applicant is only one factor to be considered in exercising the discretion, and one which is not necessarily determinative. The Court of Appeal has also approached applications for security of costs of appeals in public interest environmental litigation with an acknowledgment of the importance of not thwarting such litigation. See for example, Priestley JA in Brown v EPA41 and Kirby P in Maritime Services Board v Citizens Airport Environment Association Inc.42 In the last mentioned case the President noted that applications utilising the open standing provisions of the EPA Act 'reflect the high social importance of protecting the environment by the processes of law' not merely the interests of two private parties locked in litigious dispute. In considering an application for security of costs (of an appeal) it was appropriate to keep in mind the public interest reasons which lay behind the bringing of the case.
47. Given the ever increasing costs of litigation this is potentially the most important barrier to participation and probably the most controversial. The LEC, like most Australian courts, has on its face an apparently open-ended discretion as to costs. In practice, however, we know from precedent that it is not. Australian courts have followed the principle established in England that costs ordinarily follow the event and a successful litigant is awarded costs against the losing party (see Ritter v Godfrey).43 This is subject to the exceptions regarding the conduct of the proceedings. However, there have been cases where a court has taken into account the fact that an unsuccessful party acted in the public interest and not for personal gain. Since 1988 the LEC has recognised that a party who is legitimately claiming to represent the public interest may not be ordered to pay the costs of the successful party.44 Some of the matters to be considered in such an exercise of discretion include the quality of the applicant's case and the public interest in the subject matter of the dispute.
48. Nonetheless, the court has never regarded the mere categorisation of the proceeding as public interest litigation alone as sufficient to depart from the ordinary rule.45 In 1994 in Oshlack v Richmond River Shire Council46 I attempted to draw the cases together and tease out principles relevant to costs in public interest cases. These 'considerations' were followed by Pearlman CJ in Friends of Hay Street.47 However, the Court of Appeal reversed Oshlack48 in June 1996. The members of the court considered that the practice of the LEC was in breach of the principles set out by the High Court in Latoudis v Casey,49 a summary criminal proceeding.
49. Sheller JA said that:
If persons acting in the public interest are not to be discouraged from bringing proceedings ... by the fear that, if unsuccessful, they will have to meet the costs of the other party, the legislature may need to consider whether the costs of the other party, if it is successful, should be met from the public purse rather than the private purse of the person so acting.50
50. The court held that the public interest nature of the litigation and the motive of the applicant in bringing the litigation is an irrelevant consideration on costs.
51. The High Court of Australia granted special leave to appeal and, by majority, reversed the Court of Appeal.51 It held that the costs discretion in the LEC Act was unfettered and extended to the awarding of costs in public interest proceedings contemplated by the open standing provisions of the EPA Act. The special circumstances I had identified as arising in the public interest litigation were sufficient to warrant displacement of the ordinary rule that a successful defendant should receive costs. It is disappointing that the subsequent decision of the High Court in South-West Forest Defence v Conservation Department confined Oshlack to the special features of the NSW legislation.52
52. It should also be mentioned that the LEC has a practice of not awarding costs in merit appeals, unless the circumstances are exceptional. Reference must also be made to the importance of legal aid to the ability of citizens and NGO's to access the court. In NSW, the tap has at times been turned off - or half-off. Nonetheless, the Environmental Defenders Office (a non profit community legal centre) began to run environmental cases from January 1985 and its skill, dedication and energy has been crucial to the advancement of public interest law.53
SUBSTANTIVE LAW
53. While procedural barriers to access to environmental justice are important, the substance of the law is of equal or greater significance. In 1979 the phrase 'environmental law' was rarely heard. There was planning law, local government law, some little utilised pollution statutes (mostly derived from the UK) and miscellaneous other related legislation. However, by the mid 1980s, Environmental Law had become established as a distinctive branch of the law. Moreover, the last decade has seen its development escalate by geometric proportions. Nowhere in Australia has it progressed at the rate (and to the extent) that it has in New South Wales. By contrast, Commonwealth (or federal) Environmental Law has remained more or less static and the subject of a relatively small number of cases and statutory construction. The dual reasons for the development of the law in NSW is undoubtedly the existence of open standing provisions and a specialist court.
54. In every aspect of Environmental Law, the LEC has been called on to construe and interpret the meaning of the law. It has settled how legislation is to be administered and interpreted. In doing so, it has championed one of the main tenets of the EPA Act (as well as other legislation), namely the right of members of the public to fully participate in the processes of Environmental Law. Decisions of the court have frequently led to changes in the law, a notable example being the Endangered Fauna (Interim Protection) Act 1991. The court has also commenced a tentative interpretation of the core principles of Ecologically Sustainable Development (ESD) which have been included in a large number of Environmental Law enactments.54
55. Other areas which have benefited from judicial construction and elucidation are the responsibilities of public authorities to prepare Environmental Impact Statements (EIS) for projects which are 'likely to significantly affect the environment',55 the adequacy and quality of EIS's; the development of pollution law and the construction of a number of state environmental planning policies eg. SEPP 5, 9, 10, 14, 19, 26 and 46.56 Unsurprisingly, decisions of the court have not always been popular with the government of the day, hence occasional statutes to overturn or 'get around' decisions of the court, as well those of the Court of Appeal.
56. I propose to briefly discuss some of the illustrations mentioned above. The first concerns the protection of biodiversity.
57. From its inception in 1980, the court heard a number of challenges by individuals and environmental NGO's to the logging of rain forests and old growth forests. Most were brought against the State Forestry Commission. In the vast majority of cases the applicant proved that the Commission had breached or was likely to breach the law.57 Predictably the response by the Commission was a political one. That is, to try to convince the Government to exempt forestry operations from formal environmental impact assessment procedures and compliance with Part 5 of the EPA Act.
58. In 1991 the North East Forest Alliance (NEFA), an NGO, became concerned at logging in an inaccessible forest known as Chaelundi in the north of the State. It claimed that the forest was 'mega diverse' and many threatened and endangered species were likely to be lost through logging and other forestry activities. NEFA and other conservation groups attempted every available political activity to endeavour to stop the logging, including road blocks and demonstrations which lead to the daily arrest of large numbers of demonstrators and widespread media attention. When these confrontations appeared to fail, John Corkill, on behalf of NEFA, launched an application in the court under the open standing provisions of the National Parks and Wildlife Act 1974. His case was that the forestry operations would inevitably include the 'taking or killing' of listed endangered fauna without a licence and contrary to the statute. The definition of 'take' included 'disturb'. Mr Corkill sought declaratory and injunctive relief.
59. The Forestry Commission fought the case largely on technical legal grounds. It also argued that the Act did not bind the Crown (the Government). This was a submission that was difficult to accept, given the statutory provisions. The Commission also submitted that the definition of 'take and kill' extended to the direct and intended consequences of conduct, and not to the indirect loss or modification of the habitat of endangered fauna.
60. Relying on ordinary principles of statutory construction, and a number of United States authorities on a similar legislative code, I held that 'disturb' in the definition of 'take', included indirect action such as significant habitat modification which placed fauna under threat by adversely affecting essential behavioural characteristics relating to feeding, breeding or nesting. 'Disturb' included habitat destruction which affected an endangered species by leading immediately, or over time, to a reduced population.58 It was held that the Forestry Commission's logging operations were in breach of the National Parks and Wildlife Act (NPW Act) and this finding was upheld on appeal to the Court of Appeal.
61. The decision provoked an extreme reaction from the Government of the day which tabled a Regulation to exempt the Forestry Commission, and other State agencies, from the NPW Act. The Regulation was, however, disallowed by the Parliament. The Opposition (with the aid of Independent Green MP's) then introduced its own legislation, the Endangered Fauna (Interim Protection) Act 1991 which drew on the Corkill decision in relation to habitat protection and the need for Fauna Impact Statements where any activity was likely to have significant effect on the environment of endangered fauna. No project, which might have that effect, could proceed without obtaining a licence from the National Parks and Wildlife Service. Third party appeals were permitted by any objector if a decision to grant a licence to 'take or kill' fauna was granted. This legislation, which lasted until the passage of the Threatened Species Conservation Act 1995 (commencing in 1996), significantly slowed the loss of endangered and protected fauna and their habitat. The case also had political ramifications which led to the registration of the Premier and the Minister for the Environment; but this is another story.
62. As a result of the Rio Earth Summit and Agenda 21, the Commonwealth and the Australian States and Territories entered into the Intergovernmental Agreement on the Environment (IGAE).59 The Agreement provided that all signatories would implement certain core ESD principles in policy and decision-making. These were:
- The precautionary principle
- Conservation of biological diversity and ecological integrity
- Improved valuation, pricing and incentive mechanisms including 'polluter pays'.
63. By 1998 in excess of 50 Acts of Australian parliaments have been passed which incorporate these core ESD principles. In NSW alone, there are 15 statutes.60
64. Were these adopted principles any more than pious hopes or motherhood statements? From 1993 onwards, ESD principles began to be raised in cases before the court. One of the first such cases was Leatch v National Parks and Wildlife Service.61 This was an appeal by an objector to the issue of a licence to a local council to take and kill endangered fauna in the construction of a link road. The fauna involved were Yellow Bellied Glider and the Giant Burrowing Frog. In light of the evidence of scientific uncertainty, I was asked to take the precautionary principle into account. It had, at that time, not been specifically incorporated into the NPW Act, although it had been included in to the objects of a number of other environmental statutes. However, the subject matter, scope and purpose of the National Parks legislation made consideration of the Precautionary Principle clearly relevant. The licence was refused. Since Leatch, there have been a number of cases in the court (and in other jurisdictions) which have considered the principle, as well as other ESD principles.62
65. In Nicholls v National Parks and Wildlife Service Talbot J expressed concern with the workability of the precautionary principle. It was framed appropriately for political aspirations but as a legal standard, it had the potential to create interminable forensic argument. Nonetheless, he said that it was a 'practical approach which this court finds axiomatic'.
66. Greenpeace Australia v Redbank Power Company led Pearlman CJ to examine the precautionary principle in the context of an approval for a new coal based power station. Greenpeace argued that the development would exacerbate the greenhouse effect and, applying the precautionary principle, should be refused. Her Honour found that there was instances of scientific uncertainty on both sides of the issue. Pearlman CJ applied Leatch but held that application of the principle did not require that the greenhouse issue outweigh all other issues. See also Talbot J in Alumino v The Minister, wherein it was held that while extreme caution must be used in determining whether consent ought be granted where there was potential to cause significant harm to the environment, there was no relevant scientific uncertainty.
67. Northcompass v Hornsby Council was interesting because the development was a bioremediation plant which, in theory, would advance ESD. However, there was relevant scientific uncertainty as to the effect of odour and air pollution from windrows on young children and residents living in close proximity. The decision concluded:
It must be said that this case is not an example of the so-called NIMBY (not in my back yard) syndrome. On the evidence, it is simply inappropriate to locate a bioremediation plant with open windrows so close to sensitive land uses. One would need a trial which proved an environmental success, rather than a failure, to lend confidence in good environmental performance given the present location. Alternatively, a proponent could demonstrate the soundness of a proposal by field or laboratory tests simulating operating conditions, as suggested by the EPA. This has not occurred.
The Council argues that the concept of a bioremediation facility is an excellent example of ecologically sustainable development. We agree. It is consistent with ESD to have a facility which takes green waste away from diminishing landfill and provides value added end products. This is consistent with the core principle of intergenerational equity. It must, however, be noted that another core ESD principle is the precautionary principle. This was mentioned by the EPA and a cautionary approach was quite specifically adopted by Commissioner Cleland in his Report and recommendations to Council. We think that he was correct to do so, given the particular factual context and bufferless location.
There are of course many Rio Principles which are relevant to environmental decision-making, including a case such as this. For example, the right to a healthy environment (Principle 1). Indeed, the principle of environmental harm is a major cornerstone of ESD. This is most effectively accomplished through environmental impact assessment processes (Rio Principle 17) involving full public participation (Principle 10).
The applicability of ESD principles to designated development under Part 4 of the EPA Act and the inter-relationship of the principles has never been fully explored in the Court. It is unnecessary to do so in this case given our conclusion that the application should be refused on its merits for the reasons we have given.
68. In Planning Workshop v Pittwater Council, a case concerning the habitat of squirrel glider, Pearlman CJ left open the application of the precautionary principle since she had determined to refuse the development on the basis of its significant effect on threatened fauna.
69. From these illustrations, one can see that the judges of the LEC are attempting to grapple with and interpret ESD principles, sometimes drafted in vague and general terms and in the absence of any real legislative guidance. The court has highlighted the difficulty of translating the principles into practical terms which can be applied by decision-makers. It has given its tentative acceptance to the Precautionary Principle by adopting a 'cautious approach' to situations of scientific uncertainty where harm to the environment is likely. The decisions have also revealed the need for legislation to clearly assign the role which ESD principles are to play in decision-making. Are they to guide the decision-maker? If so how? How are they to be balanced against other relevant considerations eg. social and economic? What weight is to be given to them? Should they be defined more closely and in a fashion which eliminates vague and uncertain expression?63 Thus far, none of these questions have been answered. ESD is undoubtedly a dynamic area, pivotal to the development of Environmental Law and one which will doubtless confront the court, as it will other jurisdictions, over the next decade.
70. I mentioned this earlier but it is well to note that Principle 10 of the Rio Declaration embraces the philosophy of public participation in environmental decision-making. Fortunately for NSW, public participation has been a central feature of the environmental planning system since the 1979 EPA Act, see its objects.64 It has also emerged as an issue in a significant number of cases before the court. These have mainly involved participation in plan-making and in the development process. Consistent with the clear legislative intent and purpose, the court has stressed the importance of public participation in the making of informed decisions on the environment. Its decisions have built upon the decision of the High Court in Scurr v Brisbane City Council.65 The court has always emphasised participation rights and the difficulty of knowing whether public notices, which are found to be inadequate in some way, have failed to alert citizens to exercise their rights as objectors. I will mention some examples in brief point form.
- CSR v Yarrowlumla Shire Council.66 This concerned a misleading statutory sign erected on a quarry site to advertise the project. It failed to name the developer. Development consent declared invalid.
- Monaro Acclimatisation Society v Minister for Planning.67 Here the court held that a Local Environment Plan (LEP) was invalid because of a failure to publicly exhibit the draft. The relevant documents were kept under the counter by the council, without any sign or notice of their exhibition or availability.
In Porter v Hornsby Shire Council68 it was held that the council had denied procedural fairness in failing to notify an adjoining owner of a building application. The decision was affirmed on appeal albeit on the basis of statutory construction.69
- Canterbury Residents and Ratepayers Association Inc v Canterbury Municipal Council70 held that a public notice of a draft local environmental plan to change a zoning must not be relevantly misleading so as to negate its purpose. The statement of principle was specifically approved by the Court of Appeal in Litevale Pty Ltd v Lismore City Council.71
- Johnson v Lake Macquarie City Council72 set aside a development consent on the basis of a failure to exhibit the application for the period of time required by the Regulation.
- Maybury v The Minister for Planning73 was a case of a failure to notify tenants of land in the near vicinity of an application to erect an aluminium dross plant. The consent of the Minister was set aside because of the non-compliance.
- In Curac v Shoalhaven City Council74 the Council failed to give the required 30 days' public notice of a proposal for a shale quarry. This was held to be a breach of a mandatory requirement in the public interest which required strict adherence.
- In Helman v Bryon Shire Council75 the Court of Appeal approved Curac and upheld an appeal holding that the absence of a fauna impact statement being lodged with the development application, as required by the enactment, was a precondition to jurisdiction to grant development approval.
Nelson v Burwood Municipal Council76 concerned a failure to notify a development application in accordance with council's policy. The residents had a reasonable and legitimate expectation to be notified and given the opportunity to comment. Likewise the decision-maker deprived itself of the opportunity of considering submissions. The consent was set aside.
71. These decisions need to be understood in the light of the extensive public participation provisions in the EPA Act (and other environmental legislation) and the provision in the LEC Act (s 39(4)) that, in making a decision on an appeal, the court shall have regard, inter alia, to the public interest.
72. In order to enhance participation, in 1996 the court appointed a formal Court Users Group which meets and consults regularly with the personnel of the court to discuss issues relating to the running of the court. This has been welcomed and has been an unqualified success. It has a broad and representative membership.
73. The doctrine of public trust was actively agitated in cases before the courts of NSW in the second half of the 19th century. However, it more or less disappeared from sight until 1973 when it was used to argue that the Commonwealth had a trust or obligation to use a reserve in Canberra as a public park and not for an exceedingly tall and highly visible telecommunications tower, the Black Mountain Tower case.77 Public trust issues started to be raised before the LEC from around 1990. Willoughby City Council v The Minister78 concerned a commercial use in part in a national park in Sydney. I said:
... national parks are held by the State in trust for the enjoyment and benefit of its citizens, including future generations. In this instance the public trust is reposed in the Minister, the director and the service. These public officers have a duty to protect and preserve national parks and exercise their functions and powers within the law in order to achieve the objects of the National Parks and Wildlife Act.
74. See also Kirby P in Court of Appeal, Woollahra Municipal Council v The Minister for Environment79 and Packham v Minister for Environment.80 For a discussion of the Public Trust Doctrine see Ethical Issues in Land-Use Planning and the Public Trust.81
75. Through its summary criminal jurisdiction the court has been interpreting statutes involving environmental crime for the past 17 years. The principal areas have been water pollution, air pollution, marine oil pollution and land degradation and clearing. This jurisprudence, aided by decisions of the Court of Criminal Appeal, has lead to a more coherent body of environmental crime and its acceptance as a defined aspect of criminal law.
76. There have been some significant decisions which have had an impact on practice, policy and new legislation. However, the most important, in terms of its implications for the law generally, was EPA v Caltex.82 The EPA prosecuted Caltex for a large number of alleged breaches of its pollution control licence. It was a licence condition that Caltex daily monitor its discharges of certain toxic substances into the South Pacific Ocean. The EPA gave Caltex a notice to produce its monitoring data. In refusing to produce documents, Caltex claimed that it was entitled to rely on the privilege against self-incrimination. The issue was whether a corporation was entitled to rely on the privilege.
77. Taking the cue from Lord Denning, I was bold enough (some thought silly enough) to hold that corporations were not so entitled. This was in the face of the highest authority in England, as well as Canada, New Zealand, a number of Australian State Supreme Courts and the Federal Court.83 On the other side of the debate were decisions of the US Supreme Court and Murphy J in the High Court of Australia (which court had not authoritatively decided the issue).84 My first instance decision was reversed by the Court of Criminal Appeal but upheld in the High Court.85 The declaration by the High Court that the privilege against self-incrimination is not available to corporations (and not part of the Common Law of Australia) has had a significant impact on white collar crime investigations and trials.
78. Another case of note is the extra-territorial effect given to the NSW Clean Waters Act 1970 by Cripps CJ in State Pollution Control Commission v Brownlie.86 The Court of Criminal Appeal confirmed that the NSW Act applied to acts or omissions outside the state provided they had, or are likely to have, relevant consequences within NSW.87 In this case the defendant had aerially sprayed crops in Queensland with a toxic solution. The land was contiguous with a river which formed the border with NSW. Rain washed the pesticide down the river (into NSW) where it killed thousands of fish.
- Scrutiny of Environmental Impact Statements (EIS)
79. From the early 1980's the court was called upon to scrutinise environmental impact assessment procedures and the validity of EIS's. The examination arises in two circumstances - merit appeals and judicial review. In exercising its jurisdiction, the court has spelt out the purpose and importance of an EIS to the public and decision-maker alike and has stressed that the document is not the decision itself, but part of the process leading to a decision. The meaning of 'likely to significantly affect the environment' (s 112 EPA Act) has been explained.88 In many instances the court has been assisted by US authorities on a similar legislative scheme.89 As to the required contents of an EIS, Prineas v Forestry Commission90 (approved on appeal) set out a number of guidelines:
- An EIS is not required to be perfect. It need not cover every topic nor explore every avenue.
- It must not be superficial, subjective or non-informative.
- It should be comprehensive in its treatment of subject matter, and objective in its approach.
- It should be sufficiently specific to direct a reasonably intelligent and informed mind to the possible or potential environmental consequences of the carrying out or not carrying out the particular activity.
- It should be written in understandable language.
- SEPPs and new legislation
80. A significant proportion of detailed environmental and planning regulation is contained in State Environmental Planning Policies (SEPPs). These policies, made by the Minister, have the force of law and are the highest form of statutory instrument under the EPA Act. They often cover innovative areas of planning - social, economic and environmental. The court has frequently to apply, interpret and enforce these policies. I refer to some examples:
Social and economic
| Housing for Aged and Disabled Persons | (SEPP 5) |
| Group Homes | (SEPP 9) |
| Retention of Low-Cost Rental Accommodation | (SEPP 10) |
| Caravan Parks | (SEPP 21) |
| Residential Allotment Sizes and Dual Occupancy Subdivision | (SEPP 25) |
| Urban Consolidation (Redevelopment of Urban Land) | (SEPP 32) |
| Major Employment Generating Industrial Development | (SEPP 34) |
| Manufactured Homes Estates | (SEPP 36) |
| Multiple Occupancy of Rural Land | (SEPP 42) |
Environmental
| Coastal Wetlands | (SEPP 14) |
| Bushland - Urban Areas | (SEPP 19) |
| Littoral Rainforests | (SEPP 26) |
| Cattle Feedlots | (SEPP 30) |
| Hazardous and Offensive Development | (SEPP 33) |
| Koala Habitat Protection | (SEPP 44) |
| Protection and Management of Native Vegetation | (SEPP 46) |
81. The interpretation of state policies, such as the above (indeed all new environmental regulation), is routinely undertaken by the court. After an initial period of litigious activity, whereby the court helps to set the bounds and intent of the instrument, the experience has been that the situation settles down with little need for further 'testing'. Alternatively, the court's decision may lead to legislative refinement. I think it is fair comment that the court has sought to give effect to the intent of instruments in an effort to make them work as practical planning documents and not to be overly legalistic and nit-picking in its approach to construction.
ALTERNATIVE DISPUTE RESOLUTION
82. From its inception the court was mandated to emphasise alternatives to traditional adjudication of disputes. Section 34 of the LEC Act provides for conciliation conferences by technical assessors of the court with a view to conciliating merit appeals. Such a conciliation conference is also required to be undertaken where the claim is for compensation by reason of the compulsory acquisition of land.91 Conciliation conferences often take place on-site. They enjoy a high percentage of success in the resolution of disputes, indeed around 85%. If unsuccessful, and a hearing is necessary (before a different Commissioner unless the parties consent to the original one) the issues are usually reduced in number and well-refined. Consequently the hearings are usually short.
83. The popularity of conciliation conferences has fluctuated. Up until 1986 they were a frequently used alternative, partly because they were expeditious, inexpensive and convenient. However, by the mid 1980s, it had become apparent that parties were often attempting to 'test the waters' and 'discover' the opponent's case, rather than a genuine desire to conciliate the dispute. As a result, the number of conferences fell markedly. However, since 1995 their popularity has started to return as a viable option. Given the increase in costs of merit appeals - expert evidence and legal fees - parties have became much more committed to conciliating disputes and ensuring the necessary delegations are in place to seal an agreement. Conciliation conferences are now almost as popular as mediation as a means of dispute resolution.
84. Mediation became an option in the court in May 1991, with a government supported pilot scheme. Its success led to mediation becoming a permanent feature. The rate of successfully mediated disputes has been consistently around 70%. Mediations usually take about one-third to one-quarter of the time of contested hearings. Over 450 mediations have now been conducted within the court, ranging from small matters to very substantial mineral projects and public works. Mediations are not undertaken by judges but by well trained and experienced 'in-house' mediators.92
85. Another ADR option is Issues Conferences, introduced in 1991 primarily as a case management tool in complex legal and factual applications. Skilfully conducted conferences are often conducive to promoting settlement negotiation or resort to other court sponsored ADR mechanisms. At the very least, they sort out the real issues and set aside the illusory, obstructive or imaginary ones.
86. These ADR mechanisms account for 6 to 10% of filings which go to a full hearing. In 1994 the governing statutes for all courts were amended to promote and strengthen ADR. Apart from regularising the LEC practice and providing statutory protections for participants, mediators and the courts, the amendments enabled the court to refer matters out to accredited mediators if it was the wish of the parties.93
87. In an effort to boost ADR, the court has been considering ways of introducing independent expert appraisal and neutral evaluation as further tools to enhance dispute resolution in appropriate classes of cases.
88. A modern court should be a multi-option forum for citizens to resort in order to resolve their disputes. There is no magic in traditional adjudication by a judge. For many disputes it will be the most appropriate and preferred alternative. For others, the alternative mechanisms - arbitration, conciliation, mediation etc will be more fitting to the nature of the subject matter and the desire of the parties. A modern court should provide a range of dispute resolution options so that parties may choose what means best suits the particular circumstances of their case.
89. In 1996 the court adopted time standards for disposal of cases in each class of litigation and in the delivery of reserved judgments. The court monitors performance against those standards. Other courts have followed suit.
ADVANTAGES OF A SPECIALIST ENVIRONMENTAL COURT
90. There are many reasons why the advent of the court has been a benefit in the environmental arena. The mixed personnel of the court and its specialist nature (including the substantial use of expert witnesses) has been successful in generating the expertise and precedents required to facilitate better, more consistent environmental decision-making. This has positive ramifications for administrative decision-makers, business and industry. The range of practical skills possessed by Commissioners permit of specialist appointments to match the diversity of jurisdiction, either through the mix of judges and technical Commissioners or the matching of the expertise of Commissioners to particular cases. Importantly, the creation of a specialist court has elevated public and industry awareness of environmental issues. This has been considerably aided by improved access for parties through open-standing provisions serviced by legal aid and a non-profit community legal centre, the Environmental Defenders Office.94 By contrast, where jurisdiction remains fragmented, the impact of Environmental Law on the public consciousness is diminished.
91. The experience of 19 years of the court has demonstrated, in terms of cost, efficiency and justice, a number of advantages of having an integrated, wide-ranging jurisdiction. The following are some examples:
* decrease in multiple proceedings arising out of the same environmental dispute
* litigation will often be reduced with consequent savings to the community
* a single combined jurisdiction is administratively cheaper than multiple separate tribunals
* a greater degree of certainty in development projects
* reduction in costs and delays may lead to cheaper project development and cost for consumers
* greater convenience, efficiency and effectiveness in development control decisions
Independence and inherent jurisdiction
92. Some commentators have voiced concern regarding the independence of the court as a result of it being a 'creature of statute' and, therefore, vulnerable to the whims of parliament. They had previously pointed to a perceived lack of inherent jurisdiction. In 1993 the Court of Appeal confirmed that the LEC had inherent jurisdiction.95 The court is in the same position as any other court in Australia, as all courts are created by statute - albeit by statutes of longer standing that the LECA 1979. In addition, the judges of the court, in fact all state judges, were relatively recently granted constitutional protection to ensure judicial independence. Inter alia, these provisions ensure that no court can be abolished unless the judges of that court are appointed to a court of equivalent status.96
93. With regard to these arguably legitimate concerns, a court has substantial advantages over a tribunal. These include judicial independence, which is pertinent in the environmental area where the government is often a party to litigation. Importantly, a superior court is able to secure obedience to its orders through contempt procedures, thus enhancing its ability to protect the environment.
Damages
94. The absence of power in the Court to award damages for tort and the issue of exemplary/aggravated damages is another issue. My answer to this is that it is a matter for law reform. Proposals have been made for the provision of civil damages, particularly as a means of moving away from criminal sanctions, which are considered by some as inappropriate in certain environmental contexts. Civil enforcement is regarded as better able to achieve environmental protection. It is, therefore, possible that the court will acquire this jurisdiction. At present the court has only limited power to award damages, although this has been extended by changes to local government law and environmental offences.
Circumventing the Court
95. On occasions there has been the temptation for Governments to seek to overrule court decisions or exclude the Court's jurisdiction. Indeed, there has been some history of this, particularly prior to 1988, which resulted in a public backlash. It may, however, be pointed out that many of the legislative aberrations have followed rulings or appeals in the Court of Appeal, rather than the LEC. Political manoeuvrings can be expected to arise from time to time and have the benefit of taking place in the public arena, where a final resolution is often influenced by public opinion and lobbying. However, the case of Brown v EPA is to be noted. Legislative amendments were made following the decision in the LEC. These effectively thwarted a major portion of the appeal before the Court of Appeal. As a result, the appeal was withdrawn. Another reversal came in 1996 when the Government legislated to reverse a decision of the LEC over a large open-cut coal mine and validate a state policy declared to be void by the court (Rosemount Estates v The Minister).97 This occurred while the case was waiting to be determined in the Court of Appeal.
OTHER AUSTRALIAN JURISDICTIONS
96. The issue of a preferred system of appeals and enforcement in the areas of planning and environmental law has been the subject of scrutiny and debate around Australia for many years. A report commissioned for the federal government in 1990 recommended a single combined appellate and enforcement jurisdiction for development control in each state, necessarily providing a broad jurisdiction to resolve all planning and environmental issues.98 The authors recommended a specialist court, including judges and commissioners and modelled substantially on the LEC. The principal difference was that the specialist court would exist as a division of the Supreme Court of a State. The thrust of the report was adopted by all Australian planning ministers in 1991 and a number of states have moved towards meeting the recommendation, notably Queensland, South Australia and Tasmania.
97. Queensland has built on the previously existing Local Government Court by renaming it the Planning and Environment Court and expanding its jurisdiction. The court is serviced by District Court Judges and remains an intermediate court. The jurisdiction of the court now includes the ability to make declarations and orders that were, under the old legislation, solely the province of the Supreme Court. The expansion of the statutory powers of the court was accompanied by an open-standing provision substantially modelled on the wording of s 123 of the EPAA 1979 (NSW). However, jurisdiction remains fragmented to the extent that criminal matters are still heard in magistrates' courts, where open standing has also been granted to any person to bring proceedings by way of complaint and summons for certain breaches of the law.
98. In South Australia a new court known as the Environment Resources and Development Court has been established by the Environment Resources and Development Act 1993 (S Aust). The court is a specialist court, established to deal exclusively with building, environmental and planning disputes and is separate from the existing Supreme, District and magistrates' courts. The court is comprised of legal and non-legal appointments, and includes District Court Judges, magistrates and Commissioners (who are equivalent to assessors in the LEC). It hears all merit appeals and criminal and civil enforcement proceedings. The court is not bound by the rules of evidence and is mandated to conduct itself with the minimum of formality and inform itself as it thinks fit, characteristics drawn from the LEC. While the establishment of the court is a positive step and to be commended, there are major deficiencies. The court does not have jurisdiction over judicial review proceedings, which remain with the Supreme Court, and is a court of intermediate status. At this stage its jurisdiction over environmental issues is limited, although it is hoped to be expanded over time.
99. Tasmania has established the Resource Management and Planning Appeal Tribunal, as part of a package of legislation to reform planning, development and environmental protection. The tribunal utilises both legal and non-legal members. Its jurisdiction includes merits or administrative appeals and civil enforcement but not judicial review. An attempt to relax the common law rules of standing has been made for civil enforcement. While the legislative package contains laudable and innovative changes in statutory powers, it has failed in its conception of a curial body. The outcome, I think, will be less efficient and effective than an integrated court of a superior status.
100. In the remainder of the Australian states and territories, jurisdiction over EL continues to be fragmented. Most jurisdictions have planning and building appeals located within their administrative appeal tribunals. Western Australia is presently re-appraising its approach. Usually, although not exclusively, judicial review or civil enforcement occurs within state or territory Supreme Courts. Criminal prosecutions are normally heard in the magistrates' courts. In the Commonwealth area, jurisdiction is shared between the Administrative Appeals Tribunal and the Federal Court. However, judicial review of environmental law is restricted because of the requirement to establish common law standing and the provisions of the Environment Protection (Impact of Proposals) Act 1974 (Cth) being drafted in such a way as to make it almost non-justiciable. In any event, due to the division of powers under the Constitution, State jurisdiction is the more important.
CONCLUSIONS
101. The success (or otherwise) of the LEC must be judged not only in terms of efficiency and effectiveness, but in terms of access. Without statutory open standing the role of the court would be considerably reduced. The number of civil enforcement and judicial review applications by individuals, residents, conservation groups and other third parties (as distinct from consent or regulatory authorities) has shown modest but significant growth over the last decade. Importantly, a high proportion have succeeded in exposing and remedying breaches of the law, sometimes by the state or local government. In short, open standing has not been abused. The existence of self-help remedies to the public at large also acts as an incentive for regulators to do their job. Additionally, civil enforcement of pollution breaches is slowly becoming more popular, leaving the more serious breaches to be dealt with by the criminal law.
102. One of the successes of the original legislative package has been Part 5 of the EPA Act 1979 which controls the bulk of development activities by public authorities and draws on the National Environmental Policy Act 1970 (the NEPA) in the United States. Part 5 compels the anticipation of environmental problems and requires them to be accounted for in the decision-making process. Section 111 of the EPA Act is pivotal and imposes on a determining authority (usually a government agency) a duty to examine and take into account 'to the fullest extent possible' all matters affecting or likely to affect the environment by reason of the proposed activity. In addition to this obligation, a duty to prepare and assess an environmental impact statement (EIS) will arise if the carrying out of the activity is 'likely' to 'significantly affect the environment'. The court may therefore be called upon to examine the lawfulness of an approval in the absence of consideration of an EIS, or the correctness of the decision, if any, by the agency, that an EIS was not required. Extensive case law has developed over the past decade to interpret these provisions and has acted as a guide to proponents and citizens alike.
103. The work of the court has made a substantial contribution to the development of Environmental Law. This has occurred through building up a body of case law precedents, by interpretation of statutes and environmental planning instruments and on occasions by 'making' law.
104. The former Chief Justice of NSW, now Chief Justice of Australia, The Hon. Justice Murray Gleeson has emphasised four principal objectives of the legal system - effectiveness, efficiency, timeliness and, above all, justice. The Land and Environment Court has sought to achieve each of these objectives. It has demonstrated the appropriateness of easy access to a superior court with an integrated, exclusive jurisdiction in environmental law. Part of the court's success is, I believe, due to its mixed personnel - legal and technical. The opportunity of a judge to sit with or to delegate matters to lay assessors ensures determination by persons with appropriate qualifications and experience. The wide discretion to make orders 'as it thinks fit' and to punish for contempt those who disobey its orders, enhances its role as a specialist curial structure. The court's wide-ranging jurisdiction enables it to administer social justice in the legislative scheme of environmental laws, which travel far beyond justice inter partes. Its status as a superior court, with an integrated jurisdiction, means that it can, as far as is possible, completely resolve all matters in controversy between the parties and avoid multiplicity of litigation. An important by-product of the court's jurisdiction is the enhancement of the environmental decision-making process. Having a specialist court has also served to elevate public, government and industry awareness of environmental issues and treat them more seriously.
The Hon. Justice Paul L Stein AM
Court of Appeal of NSW, Sydney, NSW, Australia
February 1999
END NOTES
1 State of the Environment Report, Australia 1996, State of the Environment Advisory Council, Department of Environment, Sport and Territories, Canberra
2 Donald Horne, The Lucky Country, Penguin Books 1964
3 The second reading speech of the late Paul Landa, Minister for Planning and Environment stated that:
the proposed new court is a somewhat innovative experiment in dispute resolution mechanisms. It attempts to combine judicial and administrative dispute-resolving techniques will utilise non-legal experts as technical and conciliation assessors ... The court is an entirely innovative concept, bringing together in one body the best attributes of a traditional court system and of a lay tribunal system. The court, in consequence, will be able to function with the benefits of procedural reform and lack of legal technicalities as the requirements of justice permit ... The court will establish its own body of precedents on major planning issues, precedents sorely sought by [local government] councils and the development industry but totally lacking in the now to be abolished local government appeals tribunal. The decision of the court its civil jurisdiction is final, except for appeals to the Court of Appeal on questions of law ... (Hansard, NSW Parliamentary Debates 21 November 1979).
4
5 Prior to 1979, jurisdiction was split between the Local Government Appeals Tribunal (a lay tribunal with no power to determine questions of law); the Land and Valuation Court (part of the Supreme Court which dealt with compensation for compulsory acquisition of land); the Subdivision Appeals Board (a lay tribunal); the Equity Division of the Supreme Court with jurisdiction to grant declarations and injunctions; summary criminal prosecutions in the Supreme Court (and also in the Magistrates Court), as well as certain matters being assigned to the District Court. In addition, there were significant gaps where no administrative appeal or review existed.
6 From time to time the court has been subject to criticism by politicians. On a few occasions it has been suggested that the court should be incorporated within the Supreme Court. Such proposals have never been seriously considered by government. In my view, the principal reason has been the general popularity of the court with the public and resident and environmental groups. In addition, developers prefer the speed of decision-making in the LEC to any alternative and do not perceive the court as biased against them.
7 Land and Environment Court Act, 1979, s 39(2)
8 Land and Environment Court Act, 1979, s 38
9 The court attempts to strike a 'happy medium' between old fashioned formality and extreme informality. In the Australian Capital Territory a planning tribunal failed because it eschewed all formality to the extent of conducting hearings with the participants (including the adjudicators) sitting around a table calling each other by their first names and without taking sworn evidence.
10 In 1991 the court promulgated new rules for merit appeal hearings. These included strict requirements for any questions of law to be identified at the first callover with no right to raise any further question of law without leave of the court. Strict timetables were imposed relating to service of issues and experts' reports. Examination in chief and cross-examination of experts on their reports was only permitted with leave of the presiding judge or assessor. The implementation of these rules dramatically advanced preparation of appeals and prompted the use of Alternative Dispute Resolution (ADR) mechanisms available within the court. It also halved the average hearing time. This lead to a saving of costs and reduction in delays.
11 Land and Environment Court Act, 1979, s 36(5)
12 Land and Environment Court Act, 1979, s 56A
13 These and other miscellaneous areas of jurisdiction are to be found in s 19 Land and Environment Court Act (Class 3) and see s 37(2) regarding the constitution of the court to hear land rights appeals.
14 Land and Environment Court Act, 1979 s 21, (Class 5)
15 Environmental Offences and Penalties Act, 1989, s 13
16 Land and Environment Court Act, 1979, s 21A, (Class 6)
17 Environmental Planning and Assessment Act, 1979, s 123 - 'any person'
Heritage Act, 1977, s 153
National Parks and Wildlife Act, 1974, s 176A
Local Government Act, 1993, s 674
Environmentally Hazardous Chemicals Act 1985, s 57
Fisheries Management Act, 1994 s 282
Uranium Mining and Nuclear Facilities (Prohibition) Act, 1986, s 10
Wilderness Act 1987, s 27
Ozone Protection Act, 1989, s 18
Threatened Species Conservation Act, 1995, s 147
18 Rowley v NSW Leather Trading Co Pty Ltd (1980) 46 LGRA 250
National Trust (NSW) v Minister Administering Environmental Planning and Assessment Act (1981) 53 LGRA 37
19 Sydney City Council v BOMA (1985) 2 NSWLR 383
20 [1903] 1 Ch 109
21 BOMA at 449
22 Environmental Offences and Penalties Act, 1989, s 25
23 By majority the High Court held in Oshlack v Richmond River Council (1998) 72 ALJR 578 that the Land and Environment Court had an unfettered discretion as to the awarding of costs in the public interest proceedings contemplated by s 123 of the EPA Act. But see South-West Forest Defence v Conservation Department (1998) 72 ALJR 1008
24 Smith v Day (1882) 21 Ch D 421, Auto Securities Ltd v STC Ltd [1965] RPC 92
25 (1987) 70 LGRA 91
26 Ross at 98-99
27 (1978) 20 ALR 183
28 Phelps at 190
29 (1985) 66 LGRA 306
30 Hannan at 313
31 (1977) 16 ALR 161
32 CBA v Insurance Brokers Association at 169
33 Ilich v Ilich [1971] 1 NSWLR 272 at 273
34 Freedom of Information Act, 1989
35 Worimi Local Aboriginal Land Council v The Minister (1991) 72 LGRA 149
36 Hannan at 313
37 (1987) 10 NSWLR 335
38 Sedevcic at 340 A-B
39 Sedevcic at 340 F-G
40 Byron Shire Businesses for the Future Inc v Byron Shire Council (1994) 83 LGERA 59
41 Court of Appeal, Unreported, 1 April 1993
42 (1993) 83 LGERA 107 at 111
43 [1920] 2 KB 47
44 These cases are collected in the Role of the NSW Land and Environment Court in the Emergence of Public Interest Environmental Law Vol 13 No 3 EPLJ 179 (June 1996) Stein at 181
45 Rundle v Tweed Shire Council (1989) 69 LGRA 21
46 (1994) 82 LGERA 236
47 Friends of Hay Street Inc. v Hastings Council (1995) 87 LGERA 44
48 Richmond River Council v Oshlack (1996) 39 NSWLR 622
49 (1990) 170 CLR 534
50 Oshlack (on appeal to Court of Appeal) at 636
51 (1998) 72 ALJR 578
52 (1998) 72 ALJR 1008 and South Melbourne City Council v Hallam (1994) 83 LGERA 307, Attrill v Richmond River Shire Council (1995) 38 NSWLR 545 and Ratepayers and Residents Association Inc v Auckland City Council (1988) 1 NZLR 746 at 780
53 For the history of the EDO see collection of articles and contributions in Special Anniversary Edition, Ten Years of EDO, Vol 13 No 3 EPLJ 149-234 (June 1996)
54 For example:
Rural Fires Act, 1997
Catchment Management Act, 1989
Environmental Offences and Penalties Act, 1989
State Owned Corporations Act, 1989
Protection of the Environment Administration Act, 1991
Local Government Act, 1993
Environmental Planning and Assessment Regulation, 1994
Fisheries Management Act, 1994
Water Board (Corporatisation) Act, 1994
National Environment Protection Council (New South Wales) Act, 1995
annexing Intergovernmental Agreement on the Environment (IGAE)
Sustainable Energy Development Act, 1995
Threatened Species Conservation Act, 1995
Waste Minimisation and Management Act, 1995
55 EPA Act, 1979, s 112
56 State Environmental Planning Policies (SEPPs) are statutory instruments made by the Minister. They are the highest form of environmental planning instrument under the EPA Act. SEPPs prescribe the detail of policies on specific social, economic and environmental issues and have the force of law. Pages 21-22 of the paper refer to a number of policies which have frequently been scrutinised by the court.
57 For example, Kivi v Forestry Commission of NSW (1982) 47 LGRA 38; Prineas v Forestry Commission (1983) 49 LGRA 402 and on appeal (1984) 53 LGRA 160; Jerasius v Forestry Commission (1988) 71 LGRA 79; Bailey v Forestry Commission (1989) 67 LGRA 200 and Corkill v Forestry Commission (1991) 73 LGRA 126 and on appeal (1991) 73 LGRA 247
58 Corkill v Forestry Commission (1991) 73 LGRA 126, confirmed on appeal Forestry Commission v Corkill (1991) 73 LGRA 247
59 The Intergovernmental Agreement on the Environment (IGAE) was entered into by the Commonwealth, the six States, two Territories and the Australian Local Government Association in May 1992. It provided for the creation of the National Environment Protection Council (NEPC), since legislated in each jurisdiction. It also provides for the manner in which the parties will exercise their environmental responsibilities, in particular regarding pollution control. Core ESD principles are incorporated to guide environmental policy and decision-making.
60 Rural Fires Act, 1997
Catchment Management Act, 1989
Environmental Offences and Penalties Act, 1989
State Owned Corporations Act 1989
Protection of the Environment Administration Act, 1991
Local Government Act, 1993
Environmental Planning and Assessment Act 1979 (by amending Act 1997)
Fisheries Management Act, 1994
Water Board (Corporatisation) Act, 1994
Sustainable Energy Development Act, 1995
Threatened Species Conservation Act, 1995
Marine Parks Act, 1997
Waste Minimisation and Management Act, 1995
National Environment Protection Council (New South Wales) Act, 1995 annexing Intergovernmental Agreement on the Environment (IGAE)
61 (1993) 81 LGERA 270
62 Northcompass Inc v Hornsby Council, Unreported, 26 August 1996, Stein J
Nicholls v National Parks and Wildlife Service (1994) 84 LGERA 397
Greenpeace v Redbank Power Co (1994) 86 LGERA 143
Alumino v The Minister (1995) 88 LGERA 388
Planning Workshop v Pittwater Council, Unreported, 22 August 1996, Pearlman CJ
See also, Greenpeace New Zealand v Minister for Fisheries, Unreported, New Zealand High Court, 27 November 1995
R v Secretary for State for Trade & Industry, Ex parte Duddridge, Unreported, Queens Bench Division, 4 October 1994
Friends of Hinchinbrook v The Minister (1997) 142 ALR 632
63 Turning Soft Law into Hard - An Australian Experience with ESD Principles in Practice, Stein, Vol 3 No 2 The Judicial Review 91 (March 1997)
64 EPA Act, 1979 s 5(b), (c). The later subsection provides for the 'increased opportunity for public involvement and participation in environmental planning and assessment'.
65 (1973) 133 CLR 242
66 LEC, Unreported, 2 August 1985, Cripps J
67 LEC, Unreported, 2 March 1989, Stein J
68 (1989) 69 LGRA 101
69 Hornsby Shire Council v Porter (1990) 70 LGRA 175
70 (1991) 73 LGRA 317
71 Court of Appeal, Unreported, 27 August 1997
72 (1996) 91 LGERA 331
73 (1995) 87 LGERA 154
74 (1993) 81 LGERA 124
75 (1995) 87 LGERA 154
76 (1991) 75 LGRA 39
77 Kent v Johnson (1973) 21 FLR 177
78 (1992) 78 LGERA 19 at 27, 34
79 (1991) 23 NSWLR 710
80 (1993) 80 LGERA 205
81 Vol 13 No 6 EPLJ 493 (December 1996) Stein
82 (1993) 178 CLR 477
83 Triplex Safety Glass v Lancegaye Safety Glass [1939] 2 KB 395
Rio Tinto Zinc v Westinghouse Electric [1978] AC 547
New Zealand Apple & Pear Marketing Board v Master and Sons [1986] 1 NZLR 191
Klein v Bell [1955] 2 DLR 513
Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs [1984] VR 137
Webster v Solloway Mills (No 2) [1931] 1 DLR 831
84 Hale v Henkel (1906) 201 US 43
US v White (1944) 322 US 694
Bellis v US (1974) 417 US 85
Braswell v US (1988) 487 US 99
Rochfort v TPC (1982) 153 CLR 134 at 150 (Murphy J)
R v Amway (1989) 56 DLR (4th) 309
Pyneboard Pty Ltd v TPC (1983) 152 CLR 328 at 346 (Murphy J)
85 Report of Court of Criminal Appeal is (1991) 25 NSWLR 118
Report of first instance judgment (1991) 72 LGRA 212
86 (1991) 76 LGRA 419
87 Brownlie v SPCC (1992) 27 NSWLR 78
88 Prineas v Forestry Commission (1983) 49 LGRA 402 and on appeal (1984) 53 LGRA 160; Guthega v Minister (1986) 7 NSWLR 353; Drummoyne Municipal Council v RTA (1989) 67 LGRA 155 and many others
89 Part 5 of the EPA Act, 1979 closely follows the National Environment Protection Act, 1970 of the U.S. (the NEPA)
90 (1983) 49 LGRA 402
91 s 34(1A) LEC Act, 1979
92 The court uses Registrars who are trained in mediation at the highest level and possess considerable practical experience in carrying out mediations
93 For articles on ADR in the LEC see Planning Quarterly, Journal of the New Zealand Planning Institute No 124 March 1997 pp4-6,9; No 125 June 1997 pp3-4, Stein
94 'Special Anniversary Edition, 10 years of EDO', Vol. 13 Environmental and Planning Law Journal,
June 1996 No. 3 (LBC)
95 Logwon Pty Ltd v Warringah Council (1993) 33 NSWLR 13
96 Constitution Act 1902 (NSW) as amended in 1992 (Part 9)
97 (1996) 90 LGERA 1 and (1996) 91 LGERA 31, the former judgment being effectively overruled by
the State Environmental Planning (Permissible Mining) Act 1996
98 B. Hayes and C. Trenorden, Combined Jurisdictions for Development Appeals in the States and
Territories. Department of Industry, Technology and Commerce; AGPS, Canberra (1990)
|
|
