Fact Sheet 10
Challenging decision-making under ACT environmental laws
This
Fact Sheet gives an overview of the legal tools that may be used
to challenge government decisions regarding the environment in the
ACT.
Index
First Steps: Gathering Information
Alternatives to legal action
Taking legal proceedings
Types of Review
Administrative law
Which Decisions can be reviewed in the Administrative
Appeals Tribunal?
Which Decisions can be Reviewed in the Supreme
Court?
What if a Decision Maker has Refused to Make
a Decision to Protect the Environment?
Contacts
First Steps: Gathering Information
If a Minister or Government agency has made a decision that you
believe will result in adverse environmental impacts and you want
to challenge their decision then it’s very important to gather
information. Ask the following questions:
• Who was the Decision Maker?
• Precisely what was the Decision?
• Under what Act or regulations was the Decision made? When
was it made?
• What were the reasons, if any that the decision maker gave
for making the decision?
• What are the Statutory Deadlines for appealing a decision?
Please refer to Fact Sheet
9 Investigating Decision Making under ACT environmental laws
which gives more information about gathering this information.
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Alternatives to legal action
If you are concerned that someone is causing environmental damage,
there are a range of things you can do to prevent it before taking
legal action.
Contact the person causing the harm
Often the easiest way to resolve a situation where environmental
harm is occurring is by approaching the person causing the problem
and discussing it with them. It could be that they did not know
that their activity was causing harm, and that on becoming aware
of your concerns, they may agree to modify their activities.
Contact the relevant enforcement agency
If the environmental harm being caused is one which is regulated
by law, then there will usually be a government authority that has
powers to take action. For example, if your neighbour is undertaking
development without approval, you can refer the matter to the ACT
Planning Authority which has responsibility for control of developments
in the Territory.
Where environmental harm is apparent, and the relevant government
authority has the power to stop it being caused, it has a range
of steps it can take to prevent the damage. It can do this by contacting
the person causing the damage and seek their agreement to halt or
modify the offending activity. If that person fails to obey such
advice, the authority may have the
power to:
• issue directions or a notice requiring specified action
to be taken;
• undertake the required work itself and recover the cost
from the offender; or
• bring a prosecution in court.
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What to do if the authority refuses to become involved
Under the Territory’s environmental laws, many enforcement
decisions are left to the discretion of a government authority or
a Minister. Sometimes such a government authority will decide not
to take action against a person breaching a law.
Such enforcement bodies can choose not to take enforcement actions
in a particular case, so long as the grounds on which that decision
is made are lawful. For example, the enforcement body’s limited
resources may be legitimately taken into account in deciding whether
to prosecute in any particular case.
However, where the enforcement body refuses to even consider enforcing
the laws it has authority over, a court order can be sought to compel
it to do so.
A member of the public may also refer a complaint against a government
authority to the ACT or Commonwealth Ombudsman (depending on whether
an ACT or Commonwealth authority is involved). The Ombudsman will
investigate and hand down a finding on the matter. (See Fact Sheet
9)
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Starting legal proceedings
If you have exhausted alternatives to legal action, you may consider
commencing legal proceedings in court.
Legal action can be expensive, stressful and lengthy, so should
be used as a last resort.
How do you commence a legal action?
Different procedures apply depending upon whether the proceedings
are of a criminal, civil or administrative law nature. See further
below.
Types of Review
Decisions under ACT environmental laws may be challenged in:
• The ACT Administrative Appeals Tribunal
• The ACT Supreme Court
The Ombudsman and the Commissioner for the Environment do not have
the power to make a decision different to the original decision-maker
but can conduct independent investigations which may lead to recommendations
to government, which may in turn impact on that decision or future
similar decisions. (See Fact Sheet 9)
The Supreme Court conducts judicial review of decisions, which
means that it does not consider the merits of the decision but whether
or not the decision was made in accordance with required legal procedures.
Administrative law
Administrative law is the area of law dealing with the review of
decisions made by public bodies, such as Ministers, government departments
and statutory corporations. It has been said that the “primary
purpose of administrative law is to keep the powers of government
within their legal bounds, so as to protect the citizen against
their abuse.”
Where a public body acts contrary to a rule of administrative law,
that body’s actions may be reviewed through the courts by
a person affected by the decision in question. Where the public
body is a Commonwealth one, its decision can be reviewed by the
Federal Court. Where the public body is a Territory department or
agency, its decision can be reviewed in the Supreme Court or sometimes
in the AAT.
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Which Decisions can be reviewed in the Administrative Appeals Tribunal?
The Administrative Appeals Tribunal is a generalist administrative
review tribunal. It has several members with legal or professional
qualifications or experience. It can review decisions made under
the Land Act 1991, the Nature Conservation Act 1980
and certain decisions under tree protection law. It reviews decisions
on merit, in effect making the decision again. It can come to the
same or a different conclusion to the original decision maker.
Some of the decisions under the Land Act that may be reviewed
are:
• approval or refusal of some development applications
• approval or refusal of applications for listing on the Interim
Heritage places Register (see Fact Sheet 6)
• approval or refusal of applications for orders against unapproved
developments or certain activities (see Fact
Sheet 3)
As some decisions are specifically exempted from review, eg residential
development approvals for single dwellings, it is important to obtain
legal advice before making an application.
Some of the decisions under the Nature Conservation Act
which can be reviewed are:
• restrictions on or prohibition of access to reserved areas
(see Fact Sheet 5)
• grant, refusal, variation or cancellation of licences to
keep, sell, import or export animals, or take native plants (see
Fact Sheet 7)
What can be reviewed?
Not all decisions of all government agencies or authorities
can be reviewed by the AAT. Those decisions that can be reviewed
are identified in the piece of legislation under which the decision
was made. For example, decisions that can be reviewed include approval
or refusal of development applications under the Land Act,
or restrictions on or prohibition of access to reserved areas under
the Nature Conservation Act. Some decisions are specifically
exempted from review, for example, single residential development
approvals. It is necessary, therefore, to examine the relevant legislation
to see if it is possible to seek review in the AAT.
How to Apply for Review in the Administrative Appeals Tribunal
It is important to note that time limits apply to applications for
review, usually 28 days from the day the decision is notified. Legal
advice, or assistance from the Registrar of the Tribunal, may be
needed to determine the exact time limit in each case.
Application should be made on the approved form available from
the Tribunal. It should be accompanied by the prescribed fee as
advised by the Registrar of the Tribunal. The fee can be waived
in cases of hardship and is refunded if the application is successful.
Click here For a copy of the Form
: Application for Review of a Decision (AAT)
What is the Procedure in the Administrative Appeals Tribunal?
Legal representation is allowed before the AAT although it is not
required.
The Tribunal will schedule an application for a directions hearing
as soon as possible after it has been lodged (usually within a few
weeks). At a directions hearing, the Tribunal will assess whether
the matter is ready for a hearing. The directions hearing is usually
conducted by one member, who will make a preliminary assessment
of what the main issues in the case are. The Tribunal will also
try to determine how long to allocate for the hearing and when the
hearing can be scheduled. The Tribunal will therefore want to know
practical matters such as whether the parties want it to view a
development site, what witnesses might be called and whether there
are any restrictions on when witnesses are available. The Tribunal
may require further documents to be filed and may make orders necessary
to help run the case. It will set a date for the hearing or for
a further directions hearing.
Before an appeal is heard the Tribunal must consider whether it
is a suitable case for mediation. If so, the Tribunal is empowered
to refer the matter to a registered mediator and direct that the
parties attend mediation. If the matter proceeds to mediation the
process is confidential and nothing disclosed at the mediation is
admissible at any subsequent hearing unless all parties agree. If
the mediation is successful, the result is recorded and the matter
referred to the Tribunal so that it can make a decision reflecting
the terms of the settlement and the matter is then at an end. If
the mediation is unsuccessful then the matter will go to hearing
and further directions will be given by the Tribunal.
At the hearing of the matter, the Tribunal is not bound by the
strict rules of evidence, as for example, the Supreme Court would
be. The Tribunal is required to conduct the hearing with as little
formality as possible. The hearing may be conducted by one or more
members of the Tribunal. The Tribunal is required to decide appeals
within 120 days after the lodging of the appeal unless that period
is extended by the Tribunal if it is satisfied that it is in the
interests of justice to do so. The Tribunal is also empowered in
some cases to order costs against a party if the party contravenes
a direction of the Tribunal and the Tribunal considers it is in
the interests of justice to make such an order.
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Which Decisions can be Reviewed in the Supreme Court?
All decisions can potentially be reviewed in the Supreme Court
under administrative law principles. Applications for judicial review
challenge the lawfulness of an administrative decision. They are
made under the Administrative Decisions (Judicial Review) Act
1989. The Supreme Court does not consider the merits of the
decision, only whether or not it was made in accordance with the
administrative law principles. Some grounds for review are:
• that a breach of the rules of natural justice occurred
• that procedures required by law were not observed
• that the decision-maker did not have the power to make the
decision
• that the decision involved an error of law
The Supreme Court also hears appeals from the Administrative Appeals
Tribunal. Such appeals are limited to questions of law only.
How to Apply for Review in the Supreme Court
The Supreme Court Rules set out the procedure for making applications,
usually by a writ of summons. The procedure is quite formal and
it is advisable to obtain legal representation or assistance.
Other things you need to know about the Supreme Court
In contrast to the AAT, Supreme Court hearings tend to be more costly
and are held in a more formal legal environment. The Supreme Court
is bound by the formal rules of evidence. If litigation is commenced
without a professional opinion as to good or at least reasonable
prospects of success then a litigant faces a potentially considerable
financial risk of an adverse costs order. For all of these reasons,
it is advisable to obtain legal representation or assistance.
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What if a Decision Maker has Refused to Make a Decision to Protect
the Environment?
In such a situation, a given decision maker is doing nothing, whilst
an environmentally damaging activity is continuing. In other words,
a decision to do nothing often amounts to “a decision”
that in legal terms can be reviewed (see further: Administrative
Decisions (Judicial Review) Act 1989. This type of decision
involves a decision not to require an approval for a damaging activity,
or decision not to restrain an activity.
Note that this depends on whether the activity is already authorised
by a government agency eg by a pollution authorisation. You will
need to contact both ACTPLA
and the EPA in order to
find out whether any approvals are in place.
If ACTPLA is not restraining unauthorised, environmentally damaging
activity that amounts to ‘development’, one option is
to ask them to make an order restraining those works (See Fact
Sheet 3).
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What legal assistance is available?
It is increasingly difficult to obtain legal aid funding for anything
other than serious criminal offences. The Legal Aid Office of the
ACT generally does not provide assistance to people to take civil
action.
The Environmental Defender’s Office assists individuals or
groups with advice on environmental law problems, and may even represent
you in a Tribunal or court if you cannot afford to do so yourself.
The EDO will only provide advice or representation where it is in
the public interest to do so.
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Contacts
Environment Protection Authority (ACT)
12 Wattle St
Lyneham ACT 2602
Helpline: (02) 6207 9777
www.environment.act.gov.au
ACT Planning and Land Authority (ACTPLA)
Applications Secretariat
Dame Pattie Menzies House
16 Challis St
Dickson ACT 2602
(02) 6207 1687
www.actpla.act.gov.au
ACT Administrative Appeals Tribunal
4 Knowles Place
CANBERRA ACT 2602
By Post: GPO Box 370 CANBERRA CITY ACT 2601
Ph: (02) 6217 4261 or (02) 6217 4279
Fax: (02) 6217 4505
Email: magistrates.court@act.gov.au
http://www.courts.act.gov.au/magistrates/index.html
ACT Ombudsman
GPO Box 442
Canberra ACT 2601
Ph: 1300 362 072, 6276 0111
Email: ombudsman@ombudsman.gov.au
Website: http://act.ombudsman.gov.au
Environmental Defender’s Office
Public Trustee House
Level 1, 4 Mort Street
(In the Bus Interchange)
Canberra ACT 2601
Ph: (02) 6247 9420
Website: www.edo.org.au/edoact
Further Information and Disclaimer
The law described in this Fact Sheet is current at March 2005.
The ACT EDO Fact Sheets have been designed to give readers plain
English background knowledge to planning and environmental decision
making in the ACT. The ACT EDO Fact Sheets cannot replace the need
for professional legal advice in individual cases.
The information contained in this publication is for general reference
only. If you are contemplating legal action, you should seek legal
advice on the specific facts of your case as soon as possible. These
Fact Sheets cannot replace the need for professional legal advice
in individual cases.
Duplication and reproduction of the information provided in any
ACT EDO Fact Sheet is permitted with acknowledgment of the ACT EDO
as source.
The ACT EDO Fact Sheets Project was carried out with the assistance
of funds made available by the ACT Government under the ACT Environment
Grants Program.
Important: Readers are advised to seek professional legal advice
in relation to specific legal questions.
These fact sheets provide a summary of the law and are not intended
to be comprehensive or to cover the specifics of any given situation.
While every effort has been made to ensure the content is as accurate
as possible, the EDO does not accept any responsibility for any
loss or disadvantage resulting from reliance or use of this work.
Other Fact Sheet Titles
Note: Some other fact sheet titles are unavailable at this
time as they are being updated following legislative amendments
and administrative changes. These fact sheets will be added as soon
as possible.
Fact Sheet 1 Environmental and Planning Law in the ACT
Fact Sheet 2 National Capital
Plan and the Territory Plan
Fact Sheet 3 The Development Approval
Process
Fact Sheet 4 EIA Law in the ACT
Fact Sheet 5 Management of Public Lands
Fact Sheet 6 Heritage Law
Fact Sheet 7 Biodiversity Protection Law in the ACT
Fact Sheet 8 Tree Protection
Fact Sheet 9 Investigating Decision Making about the Environment
Fact Sheet 10 Challenging
Decision Making about the Environment
Fact Sheet 11 Pollution Control Law
in the ACT
Fact Sheet 12 Noise Pollution Control in the ACT
Fact Sheet 13 Freedom of Information
Law in the ACT
Fact Sheet 14 Freedom of Information Law (Commonwealth)
Fact Sheet 15 Incorporating an Environmental
Group in the ACT
For information about State environmental legislation, follow the
links from the national EDO website.
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