Challenging or enforcing the decision

Government decisions are required to be made in accordance with certain processes under the law.

If you need help in understanding these processes, or are unsure about whether or not these processes were followed by a decision-maker, there may be something you can do.

 

Contact the Decision-Maker

Contacting the original decision-maker is always a good first step. The original decision-maker is the person who made the decision in the first instance. It might be a Minister (or a delegate of the Minister such as a Departmental staff member), a local council, or other statutory authority such as the Planning Assessment Commission

The original decision-maker may be able to provide you with information about the way that they made their decision, and you may have a right to request their reasons for making that decision. You might also wish to ask the decision-maker to reconsider their decision, for example if you have additional information you think that they should consider. This is discretionary and may not always be possible. For more information about requesting information from government, see How do I Gather Information? 

 

Review of Decisions

Internal review

If you are not satisfied with the outcome of your discussions with the original decision-maker, you may be able to seek internal review. This will depend on whether the particular Government Department or Agency you are dealing with offers this process. Internal review typically involves a staff member at the Government Department or Agency conducting a review of the original decision. The reviewing decision-maker may look at all relevant information, and has the power to remake the decision. 

 

External review

You can also seek a review by external bodies called ombudsmen. Complaints about Australian Government Departments can be made to the Commonwealth Ombudsman, and complaints about State Government Departments and local councils can be made to the NSW Ombudsman. Read more about Ombudsmen in Holding decision-makers to account.

 

Going to Court

The Courts have an important role to play in environmental decision-making. For environmental law matters in NSW, the Court responsible will most often be the NSW Land and Environment Court. If the decision was made by an Australian Government Agency, proceedings would most likely be brought in the Federal Court or the Administrative Appeals Tribunal.

The right to commence Court proceedings is known as 'standing'. Standing is not available in every case, and some environmental laws limit standing to certain people, or requires certain pre-conditions to be met. However, most environmental laws in NSW allow any person to bring a matter before the Court. 

There are three main categories of Court challenge: merits appeals, judicial review and civil enforcement. It may also be possible to bring a common law action for nuisance.

Court etiquette for members of the public

For any member of the public wishing to attend a hearing, the normal etiquette for court is:

  • Dress respectfully (but a suit and tie are not necessary other than for lawyers)
  • Don’t talk or make noise while the court is in session (i.e. the judge is sitting in the court)
  • Turn off any mobile phones or turn them to silent
  • Don’t take pictures or recordings (unless specifically permitted by the judge)
  • Stand and bow when the judge enters and leaves the room (you can follow what the lawyers appearing in the court do for this)
  • If you enter or leave the room while the court is in session, bow to the judge when you enter or leave the room.

 The Land and Environment Court has information on its website for public visitors. It also has information for people involved in court proceedings

 

 Merit appeals

A merit appeal allows the Court to look at the actual substance of the decision. The Court has the power to remake the original decision or modify is (such as by attaching additional conditions). This means that, in a merit appeal, arguments about the nature of the decision are heard – was it a ‘good’ decision? Should an issue have been given more weight? Expert evidence is often needed to help the Court understand the issues and come to a decision.

The Judge or Commissioner hearing the matter can take into consideration all of the material used by the original decision-maker, and can consider any fresh evidence which they thinks may be relevant. Merit appeals are usually informal in nature, and the rules of evidence do not apply. The Court is required to take into consideration the same issues as the original decision-maker in making its decision, e.g. on whether to approve a development. Merit appeals often commence on site, and community members are often given a chance to give evidence before the Court. 

Merit appeals are only available when expressly provided for in the legislation under which the decision was made. For example, merit appeals are allowed against certain categories of development under the Environmental Planning and Assessment Act 1979 (NSW). Under planning laws, standing is restricted to 'objectors' - those who lodged a submission objecting to the proposal during the exhibition phase' - and are not available at all where the Planning Assessment Commission has held a public hearing into the matter.

For more information about merit appeals, see our Fact Sheet on the Land and Environment Court.

At the hearing

If you don’t know or have forgotten something don’t hesitate to admit it. Always answer the question that is asked of you. Don’t object to questions, that’s what the lawyers are there for. Don’t be aggressive. Don’t adhere stubbornly to matters that are clearly wrong because you think they will assist you in your case. Adhering to something that is clearly wrong will in fact damage the value of the remainder of what you are trying to say. Don’t try to anticipate where the questions are seeking to take you and tailor your answer in response.

- Senior Commissioner Moore, Land and Environment Court of New South Wales

 

  

Judicial review

In judicial review, the Court looks at whether the original decision was made in accordance with the requirements of the relevant laws. For example, if the decision-maker was required to consider certain matters, did they consider all of those matters? Was the decision-maker biased? It can be quite difficult to succeed in judicial review proceedings, as the scope for argument about the legality of the decision can be quite narrow and it can be difficult to prove that the decision was not made correctly.

Judicial review cases are always heard by a Judge (and not a Commissioner) in the NSW Land and Environment Court. Strict rules of evidence apply, restricting what kind of material the Court can consider. Unlike with merit appeal proceedings, members of the public are unlikely to be called as witnesses in judicial review proceedings to give evidence about the likely impact on them of the proposal. 

Many environmental laws allow any person to bring judicial review proceedings in the NSW Land and Environment Court.

For more information about judicial review, see our Fact Sheet on the Land and Environment Court.

 

Civil enforcement

Many environmental laws allow any person to bring Court action to remedy or restrain a breach of the law. This means that if you see a law being breached - such as a development proceeding without approval or an premises polluting without a licence - you can bring the matter before a Court. Civil enforcement actions should only be taken where the Government Agency responsible for administering the relevant law has been informed of the breach and failed to take appropriate action.

Some environmental laws deny standing to the community by specifically prohibiting civil enforcement proceedings or requiring the permission of the relevant Minister before such proceedings can be commenced.

If the law in question is a piece of national legislation, civil enforcement proceedings may be possible in the Federal Court. This would probably be under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). For more information on bringing civil enforcement proceedings under the EPBC Act, see our Fact Sheet on the EPBC Act.

Most environmental laws in NSW can be enforced through civil proceedings, usually in the NSW Land and Environment Court. In NSW, individuals, trade competitors, local councils, and other Government Authorities are all entitled to bring proceedings, although there may be some limitations.

One advantage of civil proceedings is that they are often faster and less complex than criminal proceedings. Civil action can also be used to obtain court orders to prevent environmental damage from occurring, whereas criminal proceedings are often only taken after the damage has been done.

Examples of the types of orders that the Land and Environment Court can make in civil proceedings include:

  • an order for someone to stop doing something (an injunction);

  • an order to repair environmental damage (e.g. to re-vegetate a property, a remediation order);

  • to declare that there has been a breach of the law (a declaration);

  • to declare that a development consent or licence is invalid (a declaration);

  • an order that an environmental offender must pay damages.

Civil enforcement cases are always heard by a Judge (and not a Commissioner) in the Land and Environment Court. Strict rules of evidence apply, restricting what kind of material the Court can consider.

For more information about civil enforcement, see our Fact Sheet on the Land and Environment Court.

 

Actions in private nuisance

Private nuisance occurs when someone substantially and unreasonably interferes with, or disturbs someone else’s ordinary and reasonable use of the land they own or occupy. The interference occurs without direct entry onto the affected person’s land. Nuisance can be used to address some environmental concerns, including interference with enjoyment of property caused by things such as dust, smoke, dour, noise, vibration and light.

Nuisance actions are civil matters that the person suffering the nuisance brings to the court to request a remedy. A claim in nuisance is commenced by filing a Statement of Claim in the Supreme Court of NSW. The purpose of bringing a nuisance action is usually to seek an injunction, which is an order requiring the person causing the nuisance to stop the activity creating the nuisance, and damages (compensation) for any loss caused as a result of the nuisance.

In order to bring a nuisance action, you must show:

  1. That you have a legal interest in the land (e.g. freehold owner) or a right to occupy or exclusively possess the land (e.g. tenant);
  2. That the defendant has interfered with the use and enjoyment of that land; and
  3. That the inference was both substantial and unreasonable.

There are a number of things that need to be shown in order for a person to be found liable for nuisance:

  1. The defendant knew or ought to have known of the nuisance;
  2. The interference or damage to the property from the nuisance was reasonably foreseeable; and
  3. The defendant did not take reasonable action or steps to end the nuisance.

 There are a number of defences to nuisance. Read more about nuisance in our Fact Sheet Private Nuisance.

 You will need to seek legal advice about the prospects of success and the utility of bringing a claim for private nuisance.

 

 

This project has been assisted by the New South Wales Government through its Environmental Trust.

 

  ET_logo.png         Living_thing.jpg