Environmental Court: Final Report

February 21, 2018 | Author: Anonymous | Category: Social Science, Political Science, Government
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Environmental Court Project Final Report

Report to the Department of Environment, Transport and the Regions

Malcolm Grant

CONTENTS

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Contents TABLES ....................................................................................................................... XVI PREFACE ................................................................................................................. XVIII EXECUTIVE SUMMARY .............................................................................................. 1 BACKGROUND TO THE RESEARCH PROJECT...................................................................... 1 THE GENERAL OBJECTIVES OF THE STUDY........................................................................ 1 THE GENERAL APPROACH OF THE STUDY ......................................................................... 1 THE CONCEPT OF AN ENVIRONMENTAL COURT ................................................................ 2 ARGUMENTS AND PRESSURES FOR AN ENVIRONMENTAL COURT ..................................... 3 THE SIX COUNTRY REVIEW ............................................................................................... 4 AUSTRALASIA .................................................................................................................. 4 THE ENGLAND AND WALES STUDY ................................................................................. 5 IS THERE ANY NEED FOR AN ENVIRONMENTAL COURT IN ENGLAND AND WALES? .......... 6 THE VALUES ..................................................................................................................... 7 NON-STRUCTURAL CHANGES ........................................................................................... 7 STRUCTURAL CHANGES.................................................................................................... 7 THE TWO-TIER APPROACH ................................................................................................ 8 1

THE ENVIRONMENTAL COURT: AN INTRODUCTION .......................... 10 1.1 INTRODUCTION .................................................................................................. 10 1.2 BACKGROUND PRESSURES ................................................................................. 11 1.2.1 European Union law ................................................................................ 11 1.2.2 The European Convention on Human Rights .......................................... 13 1.2.3 the Rio Declaration .................................................................................. 20 1.2.4 the Aarhus Convention ............................................................................. 20 1.2.5 The Deregulation Unit’s Model Appeals Mechanism ............................. 23 1.2.6 Lord Woolf’s review of the civil justice system ....................................... 24 1.3 WHY AN ENVIRONMENTAL COURT? THE PROPOSALS FOR REFORM ................... 24 1.3.1 The Nuffield Foundation Report on Town and Country Planning ......... 24 1.3.2 The Justice-All Souls Review of Administrative Law .............................. 24 1.3.3 The Carnwath Report on Enforcing Planning Control ........................... 25 1.3.4 Environmental Courts .............................................................................. 26 1.3.5 Lord Woolf’s Garner Lecture .................................................................. 26 1.3.6 The Labour Party ..................................................................................... 28 1.4 THE CONCEPT OF AN ENVIRONMENTAL COURT .................................................. 28 1.4.1 Specialist and exclusive jurisdiction ........................................................ 28 1.4.2 Power to determine merits ....................................................................... 28 1.4.3 Integration/fragmentation ........................................................................ 29

CONTENTS

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1.4.4 Process ..................................................................................................... 29 1.4.5 Dispute resolution .................................................................................... 29 1.4.6 Expertise ................................................................................................... 30 1.4.7 Access ....................................................................................................... 30 1.4.8 Informality ................................................................................................ 31 1.4.9 Cost ........................................................................................................... 31 1.4.10 Innovation ................................................................................................. 31 1.5 CONCLUSIONS.................................................................................................... 31 2

THE GENERAL APPROACH OF THE STUDY.............................................. 33 2.1 THE STAGES OF THE RESEARCH ......................................................................... 33 2.2 THE INITIAL ASSUMPTIONS ................................................................................ 33 2.3 THE SCENARIOS ................................................................................................. 35 2.3.1 Scenario 1 ................................................................................................. 35 2.3.2 Scenario 2 ................................................................................................. 35 2.3.3 Scenario 3 ................................................................................................. 36 2.3.4 Scenario 4 ................................................................................................. 36 2.3.5 Scenario 5 ................................................................................................. 37 2.3.6 Scenario 6 ................................................................................................. 37 2.3.7 Scenario 7 ................................................................................................. 37 2.3.8 Scenario 8 ................................................................................................. 38 2.4 THE EVALUATIVE CRITERIA ............................................................................... 38 2.4.1 Procedural rationalisation....................................................................... 38 2.4.2 Substantive integration ............................................................................ 38 2.4.3 Speed and delay. ....................................................................................... 39 2.4.4 Incorporating expertise ............................................................................ 39 2.4.5 Encouraging informality .......................................................................... 39 2.4.6 Access to justice........................................................................................ 39 2.4.7 Cost of justice ........................................................................................... 40 2.4.8 Cost of the system ..................................................................................... 40 2.4.9 Special rules of evidence and procedure? ............................................... 40 2.4.10 Remedies ................................................................................................... 41 2.4.11 Extent of jurisdiction ................................................................................ 41 2.4.12 Original jurisdiction................................................................................. 41 2.4.13 Level of jurisdiction.................................................................................. 41 2.4.14 Definition of jurisdiction and the creation of environmental law ........... 42 2.4.15 The treatment of central and local government ...................................... 42 2.4.16 The impact of international obligations .................................................. 42 2.4.17 Guardianship of the environment ............................................................ 42 2.4.18 Balance in the system ............................................................................... 42

3 ENVIRONMENTAL AND LAND-USE DECISION MAKING IN SIX JURISDICTIONS ........................................................................................................... 44 3.1 INTRODUCTION .................................................................................................. 44 3.2 SWEDEN ............................................................................................................. 45 3.2.1 General principles .................................................................................... 45 3.2.2 The old legislation .................................................................................... 45 3.2.3 Town planning provisions ........................................................................ 47

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ENVIRONMENTAL COURT PROJECT: FINAL REPORT 3.2.4 Administrative system............................................................................... 48 3.2.5 Current reforms ........................................................................................ 50 3.2.6 Sweden: the scenarios .............................................................................. 52 3.2.7 Sweden: extracts from the 1998 Environmental Code ............................ 55 3.2.8 Summary ................................................................................................... 58 3.3 DENMARK.......................................................................................................... 59 3.3.1 Introduction .............................................................................................. 59 3.3.2 Administrative system............................................................................... 59 3.3.3 Principal environmental legislation ........................................................ 61 3.3.4 The hierarchy of complaints and appeals................................................ 63 3.3.5 Land-use planning.................................................................................... 64 3.3.6 The scenarios............................................................................................ 64 3.3.7 Summary ................................................................................................... 67 3.4 THE NETHERLANDS ........................................................................................... 68 3.4.1 General principles .................................................................................... 68 3.4.2 Government systems ................................................................................. 68 3.4.3 Recent reform ........................................................................................... 69 3.4.4 The scenarios............................................................................................ 69 3.4.5 Summary ................................................................................................... 75 3.5 SPAIN ................................................................................................................. 75 3.5.1 General principles .................................................................................... 75 3.5.2 The constitutional division of competences ............................................. 76 3.5.3 Local government ..................................................................................... 76 3.5.4 Substantive constitutional protection ...................................................... 77 3.5.5 Public participation ................................................................................. 77 3.5.6 Land-use planning.................................................................................... 77 3.5.7 The scenarios............................................................................................ 77 3.6 REPUBLIC OF IRELAND....................................................................................... 82 3.6.1 General principles .................................................................................... 82 3.6.2 An Bord Pleanála ..................................................................................... 82 3.6.3 The High Court ........................................................................................ 87 3.6.4 The scenarios............................................................................................ 87 3.6.5 Summary ................................................................................................... 91 3.7 GERMANY.......................................................................................................... 93 3.7.1 General principles .................................................................................... 93 3.7.2 Administrative system............................................................................... 93 3.7.3 Federal Environmental Agency ............................................................... 95 3.7.4 Reforms: towards an environmental code ............................................... 96 3.7.5 Environmental litigation in Germany ...................................................... 97 3.7.6 Locus standi.............................................................................................. 98 3.7.7 Enforcement.............................................................................................. 99 3.7.8 The scenarios............................................................................................ 99 3.7.9 Summary ................................................................................................. 105 3.8 CONCLUSIONS.................................................................................................. 105

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NEW ZEALAND .................................................................................................. 106 4.1 4.2

INTRODUCTION ................................................................................................ 106 THE BACKGROUND TO THE CREATION OF AN ENVIRONMENT COURT .............. 106

CONTENTS

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4.3 THE RESOURCE MANAGEMENT REFORMS ....................................................... 109 4.3.1 Central government reforms .................................................................. 109 4.3.2 Local government reforms ..................................................................... 113 4.3.3 The Resource Management Act 1991 .................................................... 114 4.4 THE HIERARCHY OF RESOURCE MANAGEMENT PLANS, POLICY STATEMENTS AND STANDARDS .................................................................................................................. 115 4.4.1 The general section 32 obligation ......................................................... 116 4.4.2 Plans and rules ....................................................................................... 117 4.4.3 Process ................................................................................................... 117 4.4.4 National environmental standards ........................................................ 118 4.4.5 National policy standards ...................................................................... 118 4.4.6 National coastal policy statement .......................................................... 119 4.4.7 Regional policies and plans ................................................................... 119 4.4.8 District plans .......................................................................................... 119 4.4.9 Compensation for restrictions imposed by plans .................................. 120 4.5 THE REQUIREMENT OF RESOURCE CONSENT .................................................... 121 4.6 THE CONSTITUTION AND ESTABLISHMENT OF THE COURT............................... 123 4.6.1 Judges and commissioners ..................................................................... 123 4.6.2 Appointment of judges ............................................................................ 123 4.6.3 Commissioners ....................................................................................... 125 4.6.4 Administration of the court .................................................................... 126 4.6.5 Relationships with external bodies ........................................................ 126 4.6.6 Funding and resources........................................................................... 127 4.6.7 Staffing.................................................................................................... 128 4.6.8 Allocation of business ............................................................................ 129 4.6.9 Case management .................................................................................. 129 4.7 JURISDICTION................................................................................................... 130 4.7.1 Plans and policy statements ................................................................... 130 4.7.2 Resource management consent appeals ................................................ 130 4.7.3 Compulsory acquisition and public works ............................................ 130 4.7.4 Declaratory jurisdiction ......................................................................... 130 4.7.5 Enforcement............................................................................................ 131 4.7.6 Other statutory jurisdiction.................................................................... 132 4.7.7 Inherent jurisdiction ............................................................................... 132 4.8 THE SUBSTANTIVE FRAMEWORK FOR DECISIONS ............................................. 133 4.8.1 Sustainable resource management ........................................................ 133 4.9 COURT PROCEDURES: PRELIMINARY................................................................ 134 4.9.1 Constitution of the court ........................................................................ 134 4.9.2 Jurisprudence ......................................................................................... 135 4.10 INSTITUTION OF PROCEEDINGS ......................................................................... 135 4.10.1 Pleadings ................................................................................................ 135 4.10.2 The information letter ............................................................................ 136 4.10.3 Interim orders ......................................................................................... 136 4.10.4 Pre-hearing meetings ............................................................................. 137 4.10.5 Written representations .......................................................................... 138 4.10.6 Evidence ................................................................................................. 138 4.11 HEARINGS IN THE COURT ................................................................................ 138

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ENVIRONMENTAL COURT PROJECT: FINAL REPORT 4.11.1 The character of the proceedings .......................................................... 138 4.11.2 Formality ................................................................................................ 140 4.11.3 Appearances ........................................................................................... 140 4.11.4 Evidence ................................................................................................. 140 4.11.5 Legal representation .............................................................................. 142 4.11.6 Public participation in proceedings ...................................................... 142 4.11.7 Settlement by the parties ........................................................................ 142 4.11.8 Decisions of the Court............................................................................ 143 4.11.9 Appeals to and from the Environment Court......................................... 143 4.11.10 Costs ................................................................................................... 144 4.11.11 Legal aid............................................................................................. 145 4.11.12 Alternative dispute resolution ............................................................ 146 4.11.13 Special cases ...................................................................................... 146 4.12 VOLUME OF BUSINESS ..................................................................................... 146 4.12.1 Overall case flow.................................................................................... 146 4.12.2 Interim orders ......................................................................................... 147 4.12.3 Criminal matters .................................................................................... 147 4.12.4 Appeals from the Court .......................................................................... 148 4.12.5 Speed of decision-making....................................................................... 148 4.13 EVALUATION OF PERFORMANCE ...................................................................... 149 4.13.1 Procedural rationalisation..................................................................... 149 4.13.2 Substantive integration .......................................................................... 150 4.13.3 Speed and delay...................................................................................... 150 4.13.4 Costs of the system ................................................................................. 153 4.13.5 Costs and access to justice ..................................................................... 153 4.13.6 Alternative Dispute Resolution .............................................................. 154 4.13.7 Locus standi............................................................................................ 156 4.13.8 Expertise and the ability to deal with it ................................................. 156 4.13.9 Remedies ................................................................................................. 156 4.13.10 Extent of jurisdiction .......................................................................... 156 4.13.11 Special rules of evidence and procedure ........................................... 157 4.13.12 Decision-making - where does the ultimate authority lie? ............... 157 4.13.13 Definition of jurisdiction and the creation of environmental law..... 158 4.13.14 The treatment of central and local government ................................ 158 4.13.15 The impact of international obligations ............................................ 158 4.13.16 Guardianship of the environment ...................................................... 159 4.13.17 Balance in the system ......................................................................... 159 4.14 THE SCENARIOS ............................................................................................... 160 4.14.1 Scenario 1: the highway proposal ......................................................... 160 4.14.2 Scenario 2: manufacturing facility on greenfield site ........................... 161 4.14.3 Scenario 3: breach of discharge consent............................................... 162 4.14.4 Scenario 4: toxic tort .............................................................................. 163 4.14.5 Scenario 5: 100 new dwellings on greenfield site ................................. 164 4.14.6 Scenario 6: the domestic garage............................................................ 165 4.14.7 Scenario 7: objections to local plan ...................................................... 165 4.14.8 Scenario 8: proposed international airport........................................... 166

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CHAPTER 5: NEW SOUTH WALES .............................................................. 167

CONTENTS

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5.1 INTRODUCTION ................................................................................................ 167 5.2 THE BACKGROUND TO THE SPECIALIST COURT ................................................ 168 5.3 THE ROLE OF THE COURT................................................................................. 170 5.3.1 Constitution and establishment.............................................................. 170 5.3.2 Judges ..................................................................................................... 170 5.3.3 Assessors ................................................................................................ 171 5.3.4 Relationships with other bodies ............................................................. 172 5.3.5 Ministerial call-in................................................................................... 172 5.3.6 The Court’s resources ............................................................................ 173 5.3.7 Allocation of business of the Court ........................................................ 174 5.4 STRUCTURE AND STATUTORY POWERS ............................................................ 175 5.4.1 Class 1: Environmental Planning and Protection Appeals .................. 175 5.4.2 Class 2: Local Government and Miscellaneous Appeals and Applications 176 5.4.3 Class 3: Land Tenure, Valuation, Rating and Compensation .............. 176 5.4.4 Classes 1 to 3: assessors’ jurisdiction ................................................... 176 5.4.5 Class 4: Environmental Planning and Protection, and Development Contract Civil Enforcement .................................................................................... 177 5.4.6 Class 5: Environmental Planning and Protection: Summary Criminal Enforcement ............................................................................................................ 177 5.4.7 Class 6: Appeals from convictions relating to environmental offences 178 5.4.8 Potential Class 7: native title ................................................................. 178 5.4.9 Ancillary jurisdiction ............................................................................. 179 5.5 INHERENT JURISDICTION .................................................................................. 179 5.6 COMMON LAW JURISDICTION........................................................................... 179 5.7 THE NATURE OF THE COURT’S JURISDICTION ................................................... 179 5.8 SUBSTANTIVE CRITERIA ................................................................................... 179 5.8.1 Introduction ............................................................................................ 179 5.8.2 The framework of planning and environmental control ....................... 180 5.8.3 When development consent is required ................................................. 184 5.8.4 Criteria for granting consent ................................................................. 184 5.8.5 Integrated permitting ............................................................................. 185 5.8.6 Prior review of council’s decision ......................................................... 185 5.8.7 Consents to discharges to the environment ........................................... 186 5.9 PRACTICE AND PROCEDURE OF THE COURT..................................................... 186 5.9.1 Initiating proceedings ............................................................................ 186 5.9.2 Third party proceedings ......................................................................... 187 5.9.3 Pleadings ................................................................................................ 190 5.9.4 Interim orders ......................................................................................... 190 5.9.5 Joinder .................................................................................................... 191 5.9.6 Undertakings as to damages and security for costs .............................. 191 5.9.7 Written representations .......................................................................... 192 5.9.8 The “call-over” process: Classes 1, 2 and 3......................................... 192 5.9.9 Callover in Class 4 cases ....................................................................... 194 5.9.10 Fast track for controversial cases.......................................................... 194 5.10 HEARINGS PROCEDURE .................................................................................... 194 5.10.1 Conferences ............................................................................................ 194

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5.10.2 Class 4 issues conferences ..................................................................... 195 5.10.3 General hearings procedure .................................................................. 195 5.10.4 Evidence ................................................................................................. 196 5.10.5 Allocation of assessors and judges ........................................................ 196 5.10.6 The character of hearings ...................................................................... 197 5.10.7 Litigants in person.................................................................................. 197 5.10.8 Formalities ............................................................................................. 198 5.10.9 Precedent ................................................................................................ 198 5.10.10 Judgements and orders ...................................................................... 198 5.11 APPEAL FROM THE COURT............................................................................... 199 5.12 COSTS .............................................................................................................. 199 5.13 LEGAL AID ....................................................................................................... 201 5.14 ALTERNATIVE DISPUTE RESOLUTION ............................................................... 202 5.14.1 Mediation................................................................................................ 202 5.14.2 Conferences ............................................................................................ 203 5.14.3 Other ADR options ................................................................................. 204 5.14.4 Evaluation .............................................................................................. 204 5.15 SPECIAL CASES ................................................................................................ 205 5.16.1 Appeals from the Court .......................................................................... 207 5.17 THE PARTIES .................................................................................................... 208 5.18 EVALUATION ................................................................................................... 208 5.18.1 General impressions............................................................................... 208 5.18.2 Procedural rationalisation and substantive integration ....................... 209 5.18.3 Speed and delay...................................................................................... 211 5.18.4 Incorporating expertise .......................................................................... 212 5.18.5 Encouraging informality ........................................................................ 213 5.18.6 Alternative dispute resolution ................................................................ 213 5.18.7 Cost of the system ................................................................................... 214 5.18.8 Rules of evidence and procedure ........................................................... 215 5.18.9 Remedies ................................................................................................. 215 5.18.10 Extent of jurisdiction .......................................................................... 215 5.18.11 Original jurisdiction .......................................................................... 216 5.18.12 Level of jurisdiction ........................................................................... 216 5.18.13 Definition of jurisdiction .................................................................... 217 5.18.14 The treatment of central and local government ................................ 217 5.18.15 International obligations ................................................................... 218 5.18.16 Administrative costs of the system ..................................................... 218 5.18.17 Balance in the system ......................................................................... 218 5.19 THE COURT IN PRACTICE: ANALYSIS OF THE SCENARIOS ................................. 218 5.19.1 Scenario 1: highway proposal ............................................................... 218 5.19.2 Scenario 2: manufacturing facility on greenfield site ........................... 220 5.19.3 Scenario 3: breach of discharge consent............................................... 221 5.19.4 Scenario 4: toxic tort .............................................................................. 222 5.19.5 Scenario 5: 100 new dwellings on greenfield site ................................. 222 5.19.6 Scenario 6: the domestic garage............................................................ 222 5.19.7 Scenario 7: objections to local plan ...................................................... 223 5.19.8 Scenario 8: proposed international airport........................................... 223

CONTENTS

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5.20 COMMISSIONS OF INQUIRY .............................................................................. 224 5.20.1 Other institutions .................................................................................... 224 5.20.2 Background ............................................................................................ 224 5.20.3 Commissioners of Inquiry ...................................................................... 224 5.20.4 Support Staff ........................................................................................... 225 5.20.5 Resources and budget ............................................................................ 225 5.20.6 When a public inquiry may be held........................................................ 225 5.20.7 Powers of the Commissioners ................................................................ 226 5.20.8 Types of Inquiry...................................................................................... 226 5.20.9 Requesting an Inquiry and setting it up. ................................................ 227 5.20.10 Practice and procedure before the Inquiry ....................................... 228 5.20.11 The conduct of the Inquiry ................................................................. 229 5.20.12 Technical evidence ............................................................................. 230 5.20.13 The right to be heard.......................................................................... 230 5.20.14 Questions and site inspections ........................................................... 230 5.20.15 Length of an Inquiry........................................................................... 231 5.20.16 Relationship with other bodies .......................................................... 231 5.20.17 Publication of the report .................................................................... 231 5.21 THE ENVIRONMENTAL DEFENDER’S OFFICE ................................................... 232 5.21.1 Background ............................................................................................ 232 5.21.2 Activities ................................................................................................. 233 5.21.3 Funding .................................................................................................. 233 6

QUEENSLAND .................................................................................................... 234 6.1 INTRODUCTION ................................................................................................ 234 6.2 BACKGROUND TO THE CREATION OF A SPECIALIST COURT AND THE ROLE OF THE PLANNING AND ENVIRONMENT COURT ....................................................................... 234 6.3 THE INTEGRATED PLANNING ACT 1997 .......................................................... 235 6.4 CONSTITUTION AND ESTABLISHMENT .............................................................. 236 6.4.1 Judges and Commissioners .................................................................... 236 6.4.2 Appointment of Judges ........................................................................... 236 6.4.3 Relationship with external bodies .......................................................... 237 6.4.4 Funding and resources........................................................................... 238 6.4.5 Case management .................................................................................. 238 6.5 FORMAL POWERS OF THE COURT ..................................................................... 239 6.5.1 General powers ...................................................................................... 239 6.5.2 The declaratory jurisdiction .................................................................. 240 6.5.3 The injunctive jurisdiction ..................................................................... 240 6.5.4 Interlocutory injunctions ........................................................................ 240 6.5.5 Environment appeals.............................................................................. 241 6.5.6 Common law, criminal jurisdiction, inherent jurisdiction .................... 241 6.6 THE SUBSTANTIVE FRAMEWORK FOR DECISIONS ............................................. 241 6.6.1 The objectives of the legislation ............................................................. 241 6.6.2 The policy framework............................................................................. 242 6.6.3 The integrated assessment process ........................................................ 242 6.6.4 Precedent and law reporting ................................................................. 243 6.7 PRACTICE AND PROCEDURE ............................................................................. 243

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ENVIRONMENTAL COURT PROJECT: FINAL REPORT 6.7.1 How jurisdiction is triggered ................................................................. 243 6.7.2 Amending pleadings/joining objectors .................................................. 244 6.7.3 Written representations .......................................................................... 245 6.7.4 Applications for directions ..................................................................... 245 6.7.5 De novo hearing ..................................................................................... 245 6.7.6 Expert evidence ...................................................................................... 246 6.7.7 Legal representation before the Court .................................................. 246 6.7.8 Locus standi............................................................................................ 246 6.7.9 The role of the judge .............................................................................. 247 6.7.10 Decisions ................................................................................................ 247 6.7.11 Appeals from the Planning and Environment Court ............................. 247 6.7.12 Costs, undertakings and legal aid.......................................................... 247 6.7.13 Alternative Dispute Resolution .............................................................. 248 6.7.14 Special rules ........................................................................................... 248 6.8 VOLUME OF BUSINESS ..................................................................................... 249 6.8.1 Overall caseflow..................................................................................... 249 6.8.2 Speed of decision-making....................................................................... 249 6.9 EVALUATION OF PERFORMANCE ...................................................................... 249 6.9.1 Procedural rationalisation, substantive integration and the proposals for reform 250 6.9.2 Speed and delay...................................................................................... 251 6.9.3 Incorporating expertise .......................................................................... 251 6.9.4 Encouraging informality ........................................................................ 252 6.9.5 Access to justice and locus standi .......................................................... 252 6.9.6 Costs of justice ....................................................................................... 252 6.9.7 Special rules of evidence and procedure ............................................... 252 6.9.8 Remedies ................................................................................................. 253 6.9.9 Extent of jurisdiction .............................................................................. 253 6.9.10 Original jurisdiction............................................................................... 253 6.9.11 Level of jurisdiction................................................................................ 253 6.9.12 Definition of jurisdiction and creation of environmental law............... 253 6.9.13 Treatment of central and local government .......................................... 253 6.9.14 International obligations........................................................................ 253 6.9.15 Guardianship of the environment .......................................................... 253 6.9.16 Balance in the system ............................................................................. 254

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SOUTH AUSTRALIA ......................................................................................... 255 7.1 THE ESTABLISHMENT OF A SPECIALIST COURT................................................. 255 7.2 MEMBERS OF THE COURT ................................................................................ 255 7.2.1 Judges ..................................................................................................... 255 7.2.2 The Master/Magistrate........................................................................... 256 7.2.3 Commissioners ....................................................................................... 256 7.2.4 Training for Judges and Commissioners ............................................... 258 7.2.5 Special allowances ................................................................................. 258 7.2.6 Procedure for appointments to the Court .............................................. 258 7.2.7 Career prospects .................................................................................... 258 7.3 EXTERNAL RELATIONSHIPS .............................................................................. 259 7.4 RESOURCES ..................................................................................................... 259

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7.5 BUSINESS MANAGEMENT ................................................................................. 259 7.6 THE COURT’S JURISDICTION ............................................................................ 260 7.6.1 Planning and control over development ................................................ 260 7.6.2 The role of the Court in relation to planning and development matters 261 7.6.3 The Court’s jurisdiction in relation to environmental protection......... 262 7.6.4 Other legislation..................................................................................... 263 7.6.5 Ancillary powers .................................................................................... 265 7.6.6 Criminal jurisdiction .............................................................................. 265 7.6.7 The nature of the Court’s jurisdiction ................................................... 266 7.6.8 Does the Court have cognisance of international obligations? ............ 267 7.7 PRACTICE AND PROCEDURE ............................................................................ 267 7.7.1 Third party rights ................................................................................... 267 7.7.2 Rules as to pleadings and their amendment .......................................... 269 7.7.3 Interim Orders and Rulings ................................................................... 269 7.7.4 Joinder of parties ................................................................................... 269 7.7.5 Ability of other parties to intervene ....................................................... 269 7.7.6 Requiring security .................................................................................. 269 7.8 DECISION MAKING ........................................................................................... 269 7.8.1 Conferences ............................................................................................ 269 7.8.2 Composition of the bench....................................................................... 270 7.8.3 Hearings ................................................................................................. 271 7.8.4 Evidence ................................................................................................. 272 7.8.5 Representation of parties ....................................................................... 273 7.8.6 Rights of participation for members of the public ................................. 275 7.8.7 Role of Judge in relation to hearings..................................................... 275 7.8.8 After the hearing..................................................................................... 275 7.8.9 Issuing decisions .................................................................................... 275 7.9 APPEALS FROM THE DECISION OF THE ERD COURT ........................................ 275 7.10 COSTS AND EXPENSES...................................................................................... 275 7.10.1 Lodgement fees ....................................................................................... 275 7.10.2 Awards of costs....................................................................................... 276 7.10.3 Availability of legal aid .......................................................................... 276 7.10.4 Costs of the system ................................................................................. 277 7.11 ALTERNATIVE DISPUTE RESOLUTION .............................................................. 277 7.11.1 The Court’s approach to conferences.................................................... 280 7.12 SPECIAL PARTIES ............................................................................................. 281 7.13 VOLUME OF BUSINESS ..................................................................................... 281 7.14 DECISION TIMES ............................................................................................... 282 7.15 FINAL COMMENT ............................................................................................. 282 8

EVALUATION OF THE AUSTRALASIAN ENVIRONMENTAL COURTS 284 8.1 8.2 8.3

9

INTRODUCTION ................................................................................................ 284 THE PARALLELS ............................................................................................... 284 THE DIFFERENCES ............................................................................................ 287

ENGLAND AND WALES: INTRODUCTION................................................ 292

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9.1 INTRODUCTION ................................................................................................ 292 9.2 A BRIEF HISTORY OF LAND-USE DECISION MAKING.......................................... 293 9.2.1 Phase 1: Parliamentary legislation ....................................................... 293 9.2.2 Phase 2: Experiments with inspectors ................................................... 294 9.2.3 Phase 3: Provisional orders .................................................................. 297 9.2.4 Phase 4: The post-war welfare state ..................................................... 299 9.2.5 Phase 5: The Franks Committee and its consequences ........................ 302 9.2.6 Phase 6: the creation of the Planning Inspectorate Next Steps Agency (PINS) 310 9.2.7 Phase 7: the final transfer of Parliamentary power.............................. 311 9.3 ENVIRONMENTAL REGULATION ....................................................................... 314 9.3.1 Early public health legislation ............................................................... 314 9.3.2 Command and control systems .............................................................. 315 9.3.3 Enforcement............................................................................................ 316 9.4 CONCLUSIONS.................................................................................................. 316 10

THE PLANNING INSPECTORATE EXECUTIVE AGENCY (PINS) ... 319 10.1 THE INSPECTORATE’S WORK ........................................................................... 319 10.1.1 The source of inspectors’ jurisdiction ................................................... 319 10.1.2 The categories of jurisdiction ................................................................ 320 10.1.3 Matters not allocated to the Inspectorate .............................................. 323 10.2 THE CASE LOAD ............................................................................................... 324 10.3 THE INSPECTORATE’S RESOURCES................................................................... 330 10.3.1 Financing................................................................................................ 330 10.3.2 Staffing.................................................................................................... 331 10.3.3 Premises ................................................................................................. 332 10.4 PROCEDURES FOR DEALING WITH CASES ......................................................... 334 10.4.1 Initiation of the Inspectorate’s jurisdiction ........................................... 334 10.4.2 The right to appeal ................................................................................. 334 10.4.3 Third-party rights ................................................................................... 335 10.4.4 Making an appeal ................................................................................... 335 10.4.5 Powers of the Secretary of State on appeal ........................................... 335 10.4.6 Preliminary case management............................................................... 336 10.4.7 The problem of delay.............................................................................. 337 10.5 THE POLICY FRAMEWORK ................................................................................ 338 10.5.1 The significance of national policy ........................................................ 338 10.5.2 The policy context of decisions .............................................................. 339 10.6 APPEALS PROCEDURE ...................................................................................... 339 10.6.1 Written representations procedures....................................................... 339 10.6.2 Public local inquiries ............................................................................. 340 10.6.3 Hearings ................................................................................................. 346 10.7 COSTS .............................................................................................................. 348 10.8 CASE MANAGEMENT IN THE PLANNING INSPECTORATE .................................. 350 10.8.1 Pre-inquiry ............................................................................................. 350 10.8.2 Encouragement to settlement ................................................................. 351 10.8.3 Inquiry: proofs of evidence .................................................................... 352 10.8.4 The conduct of the inquiry ..................................................................... 352 10.8.5 Alternative dispute resolution ................................................................ 353

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10.8.6 Client satisfaction................................................................................... 353 10.9 SUMMARY AND CONCLUSIONS ........................................................................ 354 11

THE ROLE OF THE COURTS AND SPECIALISED TRIBUNALS ...... 355 11.1 INTRODUCTION ................................................................................................ 355 11.2 CATEGORIES OF DISPUTE ................................................................................. 355 11.2.1 Criminal law........................................................................................... 356 11.2.2 Civil law ................................................................................................. 359 11.2.3 Public law ............................................................................................... 360 11.3 THE HIERARCHY OF THE COURTS STRUCTURE ................................................. 363 11.3.1 The magistrates’ court ........................................................................... 363 11.3.2 The Crown Court ................................................................................... 364 11.3.3 The County Court ................................................................................... 365 11.3.4 The High Court ...................................................................................... 365 11.3.5 The Court of Appeal ............................................................................... 366 11.3.6 The House of Lords ................................................................................ 366 11.4 OTHER SPECIALISED COURTS AND TRIBUNALS ................................................ 366 11.5 THE LANDS TRIBUNAL .................................................................................... 367 11.5.1 Introduction ............................................................................................ 367 11.5.2 Jurisdiction ............................................................................................. 368 11.5.3 Case management in the Lands Tribunal .............................................. 368 11.5.4 Evaluation .............................................................................................. 369 11.6 VALUATION TRIBUNALS .................................................................................. 370 11.7 DISPUTE RESOLUTION BODIES IN EMPLOYMENT MATTERS ............................... 372 11.7.1 Employment Tribunals ........................................................................... 372 11.7.2 The Employment Appeals Tribunal ....................................................... 373 11.7.3 Evaluation .............................................................................................. 373 11.8 REFORM TO THE CIVIL JUSTICE SYSTEM ........................................................... 374 11.8.1 Introduction ............................................................................................ 374 11.8.2 The Woolf principles .............................................................................. 374 11.8.3 Lord Woolf’s reports .............................................................................. 375 11.8.4 Implementation of the civil justice review’s recommendations ............ 375 11.8.5 Types of case affected by the new rules ................................................. 377 11.8.6 Relevance to environmental and planning disputes .............................. 377

12

EVALUATION OF THE SYSTEM IN ENGLAND AND WALES .......... 380 12.1 INTRODUCTION ................................................................................................ 380 12.2 SCENARIO 1: THE HIGHWAY PROPOSAL ........................................................... 380 12.3 SCENARIO 2 ..................................................................................................... 383 12.3.1 Planning permission .............................................................................. 383 12.3.2 Environmental permits ........................................................................... 385 12.3.3 Decision making ..................................................................................... 385 12.3.4 The rights of the local citizens’ group ................................................... 385 12.4 SCENARIO 3: BREACH OF DISCHARGE CONSENT............................................... 386 12.4.1 Administrative enforcement action ........................................................ 386 12.4.2 Criminal prosecution ............................................................................. 387 12.4.3 Civil remedies ......................................................................................... 387 12.5 SCENARIO 4: TOXIC TORT ................................................................................ 388

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12.6 SCENARIO 5: 100 NEW DWELLINGS ON GREENFIELD SITE ................................ 390 12.7 SCENARIO 6: THE DOMESTIC GARAGE.............................................................. 392 12.8 SCENARIO 7: OBJECTIONS TO LOCAL PLAN ...................................................... 393 12.9 SCENARIO 8: PROPOSED INTERNATIONAL AIRPORT.......................................... 394 12.10 EVALUATION ............................................................................................... 399 12.10.1 Procedural rationalisation ................................................................ 399 12.10.2 Substantive integration ...................................................................... 401 12.10.3 Speed and delay.................................................................................. 404 12.10.4 Costs of the system ............................................................................. 405 12.10.5 Costs and access to justice................................................................. 406 12.10.6 Alternative dispute resolution ............................................................ 407 12.10.7 Locus standi ....................................................................................... 407 12.10.8 Expertise and the ability to deal with it ............................................. 409 12.10.9 Remedies............................................................................................. 409 12.10.10 Extent of jurisdiction .......................................................................... 409 12.10.11 Special rules of evidence and procedure ........................................... 410 12.10.12 Decision making—where does the ultimate authority lie? ............... 410 12.10.13 Definition of jurisdiction and the creation of environmental law..... 411 12.10.14 The treatment of central and local government ................................ 411 12.10.15 The impact of international obligations ............................................ 411 12.10.16 Guardian of the environment ............................................................. 412 12.10.17 Balance in the system ......................................................................... 412 13 MODELS OF AN ENVIRONMENTAL COURT FOR ENGLAND AND WALES .......................................................................................................................... 413 13.1 INTRODUCTION ................................................................................................ 413 13.2 DEFINITIONS .................................................................................................... 413 13.3 STRUCTURING THE ANALYSIS .......................................................................... 414 13.4 PROBLEMS AND VALUES .................................................................................. 415 13.4.1 Introduction ............................................................................................ 415 13.4.2 Generalism or specialist expertise? ....................................................... 415 13.4.3 Judicial independence or political accountability? .............................. 418 13.4.4 Is there a distinct body of environmental law?...................................... 419 13.5 NEW FUNCTIONS .............................................................................................. 420 13.6 NEW VALUES AND APPROACHES...................................................................... 423 13.7 NON-STRUCTURAL SOLUTIONS ........................................................................ 425 13.7.1 Improving expertise in the magistrates’ court ....................................... 425 13.7.2 Improving expertise in the crown and county courts ............................ 426 13.7.3 Improved resourcing and practices at the Planning Inspectorate ........ 426 13.7.4 Transferring the Planning Inspectorate ................................................ 427 13.7.5 Improved access conditions ................................................................... 427 13.7.6 Procedural reforms ................................................................................ 428 13.8 STRUCTURAL CHANGE ..................................................................................... 429 13.9 MODEL 1: A PLANNING APPEAL TRIBUNAL ...................................................... 429 13.10 MODEL 2: AN ENVIRONMENTAL DIVISION OF THE HIGH COURT................. 430 13.11 MODEL 3: ENVIRONMENTAL DIVISION INCORPORATING THE LANDS TRIBUNAL 434 13.12 MODEL 4: A SEPARATE ENVIRONMENTAL COURT OR TRIBUNAL.................. 436

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13.13 MODEL 5: A TWO-TIER STRUCTURE ............................................................. 438 13.13.1 The court-tier ..................................................................................... 440 13.13.2 The tribunal-tier ................................................................................. 440 13.14 MODEL 6: TWO-TIER ENVIRONMENTAL COURT WITH EXTENDED PUBLIC ACCESS AND JURISDICTION ........................................................................................... 441 13.14.1 An enforcement jurisdiction? ............................................................. 442 13.14.2 Costs ................................................................................................... 443 13.14.3 The Lands Tribunal’s jurisdiction ..................................................... 443 13.14.4 Third party appeal rights ................................................................... 443 13.14.5 Major public inquiries ....................................................................... 444 13.14.6 Criminal jurisdiction.......................................................................... 445 13.14.7 Judicial review jurisdiction ............................................................... 445 13.14.8 General civil jurisdiction ................................................................... 446 13.14.9 Sitting arrangements .......................................................................... 446 13.14.10 Relations between the two tiers ......................................................... 447 13.14.11 Costs and benefits of change ............................................................. 448 13.14.12 Implementation and transitional arrangements ................................ 448 13.15 CONCLUSIONS ............................................................................................. 451 APPENDIX 1: THE ENVIRONMENTAL COURT SEMINAR............................ 452 APPENDIX 2: COMPARATIVE TABLE OF ENVIRONMENTAL DISPUTE RESOLUTION IN 11 JURISDICTIONS .................................................................. 454 APPENDIX 3: ENVIRONMENTAL COURTS COMPARED: EVALUATIVE CRITERIA ..................................................................................................................... 460 APPENDIX 4: SUMMARY OF ENVIRONMENTAL OFFENCES IN ENGLAND AND WALES................................................................................................................. 466 APPENDIX 5: SELECTIVE BIBLIOGRAPHY ...................................................... 472 DENMARK .................................................................................................................... 472 ENGLAND AND WALES................................................................................................. 472 NEW SOUTH WALES .................................................................................................... 473 NEW ZEALAND ............................................................................................................. 475 NETHERLANDS ............................................................................................................. 476 QUEENSLAND ............................................................................................................... 476 SPAIN ........................................................................................................................... 477 SWEDEN ....................................................................................................................... 477

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Tables Table 1: German allocation of environmental responsibilities ........................................ 94 Table 2: New Zealand call-in criteria ............................................................................. 110 Table 3: RMA caseload of Wellington City Council, 1996 ........................................... 122 Table 4: sittings of the New Zealand Environment Court 1991-1998 ........................... 128 Table 5: Workload of NZ Environment Court ............................................................... 146 Table 6: Resource Management prosecutions filed........................................................ 147 Table 7: New South Wales—judges and assessors ........................................................ 170 Table 8: criteria for appointment of assessors in NSW .................................................. 171 Table 9: Class 1 of the Land and Environment Court’s jurisdiction.............................. 175 Table 10: the objects of the EPA Act (NSW)................................................................. 180 Table 11: planning instruments in NSW ........................................................................ 181 Table 12: prescribed content of NSW environmental planning instruments ................. 181 Table 13: the Land and Environment Court’s powers in civil enforcement .................. 188 Table 14: caseflow in the Land and Environment Court 1993-95 ................................. 205 Table 15: median disposal times 1993-95 (months) ...................................................... 206 Table 16: appeals from the Land and Environment Court ............................................. 207 Table 17: lodgement and hearings fees........................................................................... 276 Table 18: matters before the Court 1994-96 ................................................................... 281 Table 19: outcomes ......................................................................................................... 281 Table 20: Appeals to Supreme Court 1994-97 ............................................................... 282 Table 21: Planning Inspectorate’s caseload (England)................................................... 324 Table 22: Planning Inspectorate’s handling of planning appeals 1987-1998 (England) ................................................................................................................................. 325 Table 23: comprehensive table of planning appeals. England. 1971-1997 ................... 327 Table 24: disposal of planning appeals. England. 1971-1997........................................ 329 Table 25 : costs applications and awards ........................................................................ 349 Table 26: PINS customer satisfaction survey 1997 ........................................................ 353 Table 27: Environment Agency prosecution policy ....................................................... 358 Table 28: Outline of the existing administrative and court structure ............................. 362 Table 29: Access to justice consultation papers ............................................................. 375 Table 30: what case management requires ..................................................................... 376 Table 31: summary evaluation of scenario 1 .................................................................. 382 Table 32: summary evaluation of Scenario 2 ................................................................. 385 Table 33: summary evaluation of Scenario 3 ................................................................. 388 Table 34: summary evaluation of scenario 4 .................................................................. 389 Table 35: summary evaluation of scenario 5 .................................................................. 391 Table 36: summary evaluation of scenario 6 .................................................................. 392 Table 37: summary evaluation of scenario 7 .................................................................. 393 Table 38: summary evaluation of scenario 8 .................................................................. 398 Table 39: Time taken to decide 80% of planning appeals (inspector cases) ................. 404 Table 40: Comparison of disposal times in four jurisdictions (weeks).......................... 404 Table 41: Comparison of administrative costs in four jurisdictions .............................. 405

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Table 42: salary costs of quasi-judicial officers ............................................................. 405 Table 43: Environmental Court as new division of High Court (Model 2) ................... 433 Table 44: Environmental Court as new division of High Court incorporating Lands Tribunal (Model 3).................................................................................................. 435 Table 45: single tier Environmental Court separate from High Court (Model 4) ......... 437 Table 46: Environmental Court including regulatory appeals tier (Model 5)................ 439 Table 47: Environmental Court with public access (Model 6) ...................................... 450 Table 48: Noise offences under COPA 1974, Part III .................................................... 466 Table 49: Waste Management, Part II of EPA 1990 ...................................................... 466 Table 50: Water Industry Act 1991................................................................................. 467 Table 51: Water Resources Act 1991 ............................................................................. 469 Table 52: Control of Pesticides Regulations 1986 ......................................................... 469 Table 53: Planning (Hazardous Substances) Act 1990 .................................................. 470 Table 54: Litter, Part IV of EPA 1990 ............................................................................ 470

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Preface This Report is a study of the feasibility of establishing an environmental court for England and Wales. We have looked at models of such specialist jurisdictions that operate elsewhere, and we have attempted to identify from them what, if any, might be the essential attributes of an environmental court, and how far they were missing from current practice in England and Wales. We then examine the feasibility, in terms of the cost and impact, of establishing such a court here, and how such a court might bring improvements to the way in which environmental disputes are presently resolved here. The project was initiated and supported by the Department of the Environment (subsequently the Department of the Environment, Transport and the Regions) as part of its planning research programme. We are grateful to the Department for its support and for the positive help and encouragement which its staff have provided throughout the currency of the project. In particular we should like to thank the members of the Steering Group, whose comments on successive drafts of the different chapters have been of enormous assistance. The project turned out to be far bigger than any of us had originally conceived, and their patience and encouragement has been much appreciated. Early fieldwork for the project, and particularly the studies from which the chapters relating to New Zealand, New South Wales and Queensland were developed, was undertaken by my research assistant for the project, Mr Jimmy Murray. He brought to the task not only his considerable academic skills but also his remarkable good humour. I owe him a great debt for helping in laying the foundations for the cumbersome superstructure that has now emerged. We have also relied heavily on the assistance of experts from the various countries that we have surveyed, amongst whom are numbered the following: Denmark: Mr Ole Jacobsen, Chairman of the Environmental Appeals Board Germany: Professor Eckard Rehbinder and Professor Michael Bothe, Frankfurt am Main; Professor Gerd Winter, University of Bremen Ireland: Professor Yvonne Scannell, Trinity College Dublin Netherlands: Dr Gerrit Betlem, now of the University of Exeter New South Wales: Mr. Jerrold Cripps (former Chief Judge of the Land and Environment Court; Judge Martha Pearlman (Chief Judge of the Court); His Honour Mr Justice Stein, NSW Court of Appeal New Zealand: Judge David Sheppard, Principal Judge, Environment Court and other Judges of the Environment Court; Ms Denise Church, Chief Executive, Ministry

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of the Environment; Mr Tony Hearn QC; Mr Royden Somerville QC; the Hon Mr Justice Bruce Robertson; Professor Kenneth Palmer, Faculty of Law, Auckland University Queensland: Professor Alan Fogg, University of Queensland; Professor Douglas Fisher, Queensland University of Technology; Ms Catherine Arnold of counsel. South Australia: Mr Brian Hayes QC; Judge Christine Trenorden, Land and Environment Court Spain: Mr Javier Garcia Bellido, Ministry of Environment, Madrid Sweden: Professor Staffan Westerlund, Uppsala; Professor Said Mahmoudi, University of Stockholm; Mr. Jan Darpo, University of Stockholm

None of them, of course, bears responsibility for any part of the content of this Report, but all of them have helped saved us from more serious error.

Malcolm Grant Cambridge September 1999

CHAPTER 1: INTRODUCTION

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Executive Summary Background to the research project The impetus for this study came from the Financial Management and Performance Review (FMPR) of the Planning Inspectorate Agency in 1995-96. The terms of reference required the researchers to undertake a systematic description and analysis of the environmental court concept in the wider context of environmental regulatory activity, including functions such as determining environmental civil claims, judicial review and environmental crime. The study was undertaken in the Department of Land Economy at the University of Cambridge, and the work was overseen by a Steering Committee appointed by DETR, comprising representatives from the Planning Inspectorate and from the administrative and legal branches of DETR. The Committee received and reviewed progress reports, and commented on the final report. A special seminar was held at DETR in April 1999, and the Final Report was submitted in September 1999.

The general objectives of the study The suggestion that there should be a specialist environmental court in England and Wales is one that has surfaced on a number of occasions in recent years. The primary purposes of this study were: (1) to examine the concept of an environmental court so as to develop a clearer picture of what was being proposed; (2) to examine and evaluate experience elsewhere, so as to understand the reasons why such courts had been established, and to compare the way in which they went about their functions; (3) to test the applicability of the concept and the transferability of those experiences to England and Wales, so as to provide the necessary background material to Government and others to inform any future review of the system.

The general approach of the study The approach adopted for the study was in three stages. The first stage involved a desk study of planning and environmental decision-making in 7 jurisdictions, selected in agreement with the Steering Committee, and examining the practical operation of the provisions in light of eight hypothetical factual scenarios. The approach of each of the jurisdictions concerned was then assessed in accordance with 18 evaluative criteria. The second stage was a detailed study of four jurisdictions in which environmental courts were in operation: New Zealand, New South Wales, Queensland and South Australia. The third stage was a detailed study of planning and environmental decision-making

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ENVIRONMENTAL COURT PROJECT: FINAL REPORT

processes in England and Wales, and an exploration of the feasibility of introducing an environmental court in this jurisdiction.

The concept of an environmental court There is no single concept, but rather a mix of aspirations. However, the following criteria help define the general conception: (1) specialist and exclusive jurisdiction: the more widely cast its environmental jurisdiction, the more likely a body is to be an environmental court; (2) power to determine merits appeals. It is a common feature of most legal systems that regulatory and administrative matters respecting the environment are assigned in the first instance to administrative agencies and local authorities, and that the adjudicative function comes into play at a higher level. The authority or agency may need to invoke special enforcement assistance from a court or tribunal; or an unsuccessful applicant may have a right of appeal to such a body; or a third party may have a right of objection. In these cases, it is common for the court or tribunal to have full jurisdiction to redetermine the matter at stake, and not simply to entertain an appeal on law. Dealing with environmental issues on merits demands an expertise not common in general courts, and may also involve judicial officers in policy issues.; (3) extent of vertical and horizontal integration: environmental dispute resolution is frequently allocated to different agencies on the basis of functional distinctions which have lost their logic as the scope of environmental protection generally has grown, and as the interconnectedness of environmental problems has become better understood. The fragmentation of the primary regulatory functions may be paralleled by fragmentation in the forums in which appeals are determined. One hallmark of an environmental court must be a jurisdiction that goes beyond any single environmental sector (eg, water or waste). This means an ability to adjudicate across the whole range of environmental regulation, and to enjoy a jurisdiction that is integrated at two levels: between subject areas (eg, between land-use planning and controls over discharges to the environment); and between types of suit (eg, public law; civil action; enforcement; criminal prosecution). (4) the hallmarks of a court or tribunal, such as independence from government, power to make binding awards, proceedings in public, rules of procedure governing the institution of proceedings. (5) dispute resolution powers: the role of a “Court” or “Tribunal” is most commonly in this area. However, the distinction is rarely clear-cut. Legislation may confer rights on individuals to object to policies drafted by public agencies, and confer on them a right to pursue their objection by participating in a hearing. An adjudicative body may nonetheless be classifiable as a court, even though not narrowly confined to conventional ways in its approach to its work. Hence an environmental court or tribunal may have an involvement in policy-making, albeit at a supervisory level; for example by hearing objections to a draft development plan, or even by conducting an inquiry into proposals for a development project which inevitably raises issues of national policy, such as a major new airport or seaport or energy project, but on which no sufficient policy has been adopted by government.

CHAPTER 1: INTRODUCTION

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(6) expertise: An “environmental” court or tribunal implies a body whose members are specialists in environmental issues, from whatever disciplinary perspectives. It implies a body that is distinct from the normal courts, and whose purpose is to focus exclusively on environmental suits. It does not, however, imply that its members must all be judges from a legal background. If it is too much of a challenge to professional hegemony to envisage that non-lawyers might be judges, then there are other designations available, such as commissioners, inspectors or assessors. (7) access: this issue lies at the heart of why environmental litigation is thought to be sufficiently different from other forms of legal dispute to warrant the establishment of a separate court or tribunal. It has to do with the lack of private rights in the unowned environment. Environmental protection is about broader societal values, and providing broad rights of access to a specialised court to be able to protect those values has become an important theme in contemporary thinking about environmental rights. (8) informality: A theme closely related to that of access is that of informality, of devising procedures in which parties who lack funding or expertise can nonetheless participate effectively. This implies a move away from traditional judicial modes of approach based upon adversarial presentations and cross-examination, to styles in which the court itself takes a leading role in a more inquisitorial mode. Closely linked to this is the movement towards alternative dispute resolution (ADR), either as a substitute for court proceedings altogether, or as part of a suite of processes available to parties before the court. (9) cost: The wider participation that is sought by relaxing rules relating to access and to formality would still be inhibited by high costs. One feature of a specialist environmental court would be its ability to overcome the problems of high costs associated with normal civil litigation. (10) capacity for innovation: this is a central part of the vision that all its advocates have of an environmental court. This is not simply to be a conventional court, vested with a specialist jurisdiction, but a body capable of dealing with the different demands that environmental issues throw up; perhaps even with a standing jurisdiction and a set of independent duties in relation to the environment that would allow it to act of its own volition and not have to await the commencement of proceedings by parties.

Arguments and pressures for an environmental court Several arguments have been advanced over the past decade for an environmental court, and there are certain pressures that point in the direction of reform. These include: (1) The Carnwath Report on enforcing planning control, published in 1989; (2) Lord Woolf’s Garner Lecture of 1991, and his Lord Morris lecture of 1997; (3) The Communication issued by the European Commission in 1996 regarding the transposition, implementation and enforcement of Community environmental law, which foresaw the need to improve the opportunities for access to national courts for these purposes; (4) The Human Rights Act 1998, which may require a review of the position of the Planning Inspectorate in relation to executive government (in light of criticisms voiced in Bryan v United Kingdom) and which also creates an opportunity for the

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ENVIRONMENTAL COURT PROJECT: FINAL REPORT

development of a new jurisprudence in relation to environmental rights; (5) The Aarhus Convention, concluded in 1998 under the auspices of the Council of Europe, which contains special provisions relating to access to environmental justice (6) The Woolf reforms to the civil justice system, which are revolutionising case management in the civil courts and which have implications also for the handling of environmental disputes.

The six country review We found that there was only very limited experience in Europe and the US with the sort of judicial structure we had in mind. The closest models in Europe are to be found in Denmark (the Environmental Appeals Board); Ireland (An Bord Pleanala) and Sweden (where a new system of Environmental Courts was introduced in 1999). Each of these models has quite different features, including rules as to jurisdiction and public access. None of them has the integrated jurisdiction and open public access of the Australasian models. There are several reasons why this experience has not been more widespread, including: (1) the constitutional allocation of functions in federal states, which commonly splits environmental functions from town and country planning functions. The latter are conferred on municipalities or regional governments, and little or no power is reserved to the national or federal government. Environmental regulation, on the other hand, is primarily a matter of national or federal competence. This is the US pattern, and it helps explain why integration of land-use and environmental matters is so poorly developed there. In Spain, the federal town and country planning law of 1993 was struck down by the Supreme Court in 1997 as unconstitutional, because the function was one reserved primarily to the Autonomous Communities. (2) The traditional split between public and private law in many continental European legal systems, which makes it difficult to imagine an integrated jurisdiction encompassing regulatory, civil and/or enforcement matters; (3) The flexibility and capacity for pragmatic change of many of the traditional models of judicial structure, and the capacity to develop pockets of expertise, including environmental expertise, within existing arrangements and without changing formal court structures.

Australasia The most extensive experience with specialist courts and tribunals for planning and environmental decision-making is to be found in Australia and New Zealand, particularly: (1) New Zealand, where the Environment Court (formerly the Planning Tribunal) operates within the holistic approach required by the Resource Management Act 1991. The Court has wide powers in relation to policy (through hearing objections to development plans), and appeals (including third party appeals) in relation to

CHAPTER 1: INTRODUCTION

5

resource management consents. It also has an enforcement jurisdiction, with thirdparty access, which is extensively used; and although it has no criminal jurisdiction it is customary for judges from the Court to sit in the District Court to hear environmental prosecutions. (2) New South Wales, where the Land and Environment Court, established in 1979, is the longest running and most experienced of all. It is established as a superior court, but it also has a system of court commissioners who handle merits appeals. (3) South Australia, where the Environment, Resources and Development Court was established in 1993. It is established at District Court level. Its judges are assisted by commissioners. (4) Queensland, where the Planning and Environment Court was established in 1990, and where new planning and environmental legislation, the Integrated Planning Act 1997, which is still in the course of being implemented, seeks goals similar to those of New Zealand’s resource management legislation. On the basis of a comprehensive analysis of the background, jurisdiction, practice, volume of business, speed of dispatch, public access, resources and powers of each of the courts, the research assess their performance in accordance with the evaluative criteria. A comparative evaluation of the different models establishes that, whilst there are several common features, there are some quite distinct differences, such as in relation to jurisdiction, the formality of proceedings, effective public access and cost, and the use of lay (in the sense of not being legally qualified) commissioners. The case studies that are used to explore the different jurisdictions demonstrate that their similar legal structures do not necessarily produce similar outcomes. The research concludes that the performance of the Australasian models is impressive in terms of assembling and deploying appropriate expertise, operating advanced casemanagement techniques with a rapid turnaround of business, incorporating systems of alternative dispute resolution (ADR) and in providing an effective mechanism for enforcement. It is less impressive in terms of reducing the costs of environmental litigation, reducing formality or enabling effective public access, though there are significant variations between the different models.

The England and Wales study The Planning Inspectorate Agency (PINS) is the closest that this jurisdiction currently gets to the model of an environmental court. It does so, not through any strategic design, but through the pragmatic processes of its development. Planning Inspectors now determine over 99% of all planning appeals, and also determine appeals, objections and related matters arising under environmental protection legislation However, the Inspectorate lacks many of the features of a court: (1) it has no standing jurisdiction (indeed, the Inspectorate as such has no

6

ENVIRONMENTAL COURT PROJECT: FINAL REPORT jurisdiction at all); (2) it has no civil or criminal jurisdiction; (3) there is no public access because there are no rights of third-party appeal, although members of the public may be permitted by an inspector to participate in a public local inquiry; and (4) there is no enforcement jurisdiction beyond determining appeals against enforcement notices served by local planning authorities.

The research notes that the Inspectorate runs an efficient organisation, with steady improvements in the one performance indicator which is easily measurable (decision times), and high levels of customer satisfaction as periodically measured by customer surveys. It has demonstrated flexibility and innovation in the development of its process. Examples include the use of written proofs of evidence and restrictions on examinationin-chief; the fostering of informal hearings, which are now used in 16% of all planning appeals; and the current experiment with ADR. The research concludes that these are important qualities which would need to be preserved in any move to a new system. The scope for similar flexibility in the general courts has been more restricted, though the research notes the recently-developed practice of assignment of judicial expertise to Crown List and other cases, and the development of new approaches to multi-party actions. The Woolf reforms to the civil justice process will also have significant impacts for toxic torts cases. Other matters which in the Australasian context are assigned to the specialist courts are in England and Wales handled in a variety of specialist tribunals (including the Valuation Appeal Tribunals and the Lands Tribunal). Specialist jurisdictions are not uncommon in England and Wales. The adjudication machinery in the employment context (the employment tribunals and the Employment Appeals Tribunal) offers an alternative model.

Is there any need for an environmental court in England and Wales? The research identifies the following issues as relevant to this question: (1) the limited extent to which there has been effective integration of planning and environmental decision-making beyond the Planning Inspectorate; (2) the factors which inhibit access to environmental justice, in terms particularly of cost and delay; (3) the potential need to address the constitutional position of the Planning Inspectorate; (4) weaknesses in enforcement mechanism across the board in planning and environmental matters because of the lack of any developed civil enforcement process; (5) the want of expertise in magistrates courts to handle complex environmental criminal matters or regulatory appeals (such as contaminated land remediation notices);

CHAPTER 1: INTRODUCTION

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(6) perennial difficulties in the running of major public local inquiries into complex projects involving high technology or extensive new infrastructure.

The values There are several important values that are reflected in the existing system in England and Wales, and which are relevant to this question. They include: (1) Generalism: there is a strong generalist tradition in the English legal system, which is reflected in the general jurisdiction conferred on the courts, from the lay magistracy to the House of Lords. (2) Judicial independence and political accountability: where some countries have single-tier administrative systems, with challenge in the ordinary courts or in special courts, the English tradition is an administrative tradition. Appeals from decisions of local or national regulatory agencies remain within the administrative structure, and there is a line of political accountability. There is no evidence that people would wish such decisions to be taken by judges rather than politicians, or inspectors working within a administrative/political structure. Nonetheless, the traditional approach is not yet wholly reconciled with Article 6 of the European Convention on Human Rights. However, there are also new values, which a specialist environmental jurisdiction might capture. They include: (1) a capacity to exercise broader functions, particularly in relation to enforcement, which cannot readily be conferred within the existing structures; (2) the wish to extend public access to environmental justice, particularly in light of the Aarhus Convention

Non-structural changes There are several reforms which could address one or more of these issues, and not involve structural change. They include: (1) (2) (3) (4) (5)

the development of expertise within the general courts structure, reforms within the magistrates’ courts, transfer of the Planning Inspectorate to the Lord Chancellor’s Department; improvement in public access; and further procedural reforms along Woolf lines.

Structural changes The research identifies five alternative models of an environmental court: (1) a planning appeal tribunal; (2) an environmental division of the High Court; (3) an environmental division of the High Court also incorporating the Lands Tribunal;

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ENVIRONMENTAL COURT PROJECT: FINAL REPORT

(4) a separate Environmental Court, similar to the Employment Appeals Tribunal; (5) a separate two-tier Environmental Court, incorporating at the first tier the regulatory appeals jurisdiction of the Planning Inspectorate; (6) the same model, but incorporating also the jurisdiction of the Lands Tribunal.

The two-tier approach The two-tier model (models (5) and (6)) draws both from the Australasian models and from the employment models in England and Wales. The level at which the courts in New Zealand, Queensland and South Australia are established is roughly equivalent to that of the county court in England and Wales, though the comparison is not exact because the District Court in those countries also has a criminal jurisdiction. There need be no direct equivalence in England and Wales. The alternative would be an integrated court with an internal, but statutorily defined, two-tier structure, which may be described respectively as the “Court-tier” and the “Tribunaltier”. The Court-tier’s jurisdiction might be defined broadly, so as to include (1) Statutory appeals and applications (eg against decision of planning inspector or Secretary of State): this would involve a transfer of this jurisdiction from the Queen’s Bench Division. (2) Appeals from county courts, crown courts and magistrates’ courts by way of case stated: this would involve transferring to the Court, from the Queen’s Bench Division, responsibility for all statutory appeals, cases stated and applications to the High Court under planning and environmental legislation. Defining jurisdiction in this way is, as can be seen with the Australasian examples, a relatively unproblematic approach. It need not include criminal appeals from the magistrates’ courts or the crown court. These should continue to go through the present appeal routes, ultimately to the Court of Criminal Appeal. (3) Applications for judicial review (eg of grant of planning permission by local planning authority): judicial review responsibility could not be so readily defined, because the decision complained of might arise under other legislation though bearing a planning character or involving planning and environmental issues (eg, a decision by a local planning authority to dispose of land, which is made under powers contained in the Local Government Act 1972 as well as the Town and Country Planning Act 1990). The better approach in the case of judicial review might be to draw no distinction at the time of filing proceedings, but to leave to the discretion of the Lord Chief Justice which applications should then be assigned to the Environmental Division. (4) Construction of planning permission or other permits: this would be a jurisdiction by way of originating summons, parallel to the judicial review

CHAPTER 1: INTRODUCTION

9

jurisdiction outlined above. (5) Applications for injunctions and other civil orders: an advantage of such a court structure is that it could be given a broad civil/administrative jurisdiction, with a general right to seek injunctions and other civil orders open to “any person”, and not confined to official enforcement agencies; (6) Civil litigation (eg toxic torts): it is not clear that common law cases containing an environmental or land-use element should become exclusively within the jurisdiction of an environmental court. It would be difficult to avoid jurisdictional disputes, and it would be impossible to establish clear guidelines as to what was, and what was not, an environmental suit. It would be better to confer a general civil jurisdiction on the Environment Court, but to have all actions commenced in the County Court or High Court as at present and transferred to the Environment Court as result of a case-management order or at the discretion of the Lord Chief Justice; The Tribunal-tier would have all the jurisdiction presently assigned to planning inspectors. In essence, the Planning Inspectorate would become the second-tier of the Court. The assignment of planning inspectors’ jurisdiction to a court rather than continuing its discharge through a Government department, would provide: (1) an enhanced capacity to undertake case management; (2) a capacity to achieve better integration between different tracks of the same litigation, such as between planning and environmental permitting, and between compulsory purchase and compensation; (3) a capacity to manage third-party rights of appeal in the event that these may be introduced; (4) a better integration with the High Court in terms of administrative process, so as to allow parties to enjoy quick access to judicial rulings on points of law, even as they arise during the course of a planning or environmental permit inquiry, without lengthy delay.

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ENVIRONMENTAL COURT PROJECT: FINAL REPORT

1 The Environmental Court: an introduction 1.1 Introduction The concept of an environmental court, or a “green court”, with broad powers to secure the protection of the environment, is highly seductive. For some, it is a necessary reform to override the ineffectualness of governmental agencies and the conservatism of an unsympathetic judiciary. It offers to empower the public by giving them direct access to law. To others, it suggests a capacity to counter the growing delays that are found in decision-making in this specialist area, particularly as interest groups and members of the public turn to the law for a means of preventing or delaying unwelcome development. Environmental courts have a powerful symbolism. There are several variants already in operation around the world. The Indian Supreme Court has developed its own powerful environmental jurisprudence and has ordered an end to the pollution from tanneries that has seriously damaged the River Ganges1, decreed that the right to a pollution-free environment is part of the right to life under the Constitution2, developed the doctrine of public trust to protect natural resources3 and directed measures for the protection of the Taj Mahal from damage by air pollution4. Several other States have instead established specialist environmental courts, and others, including Bangladesh and Ireland, have recently announced proposals to do the same. The suggestion that such a specialist environmental court should be established for England and Wales has attracted support from a wide variety of different sources in recent years, ranging from the Master of the Rolls, Lord Woolf, to the Labour Party’s Environment Commission. It has been the subject of a special, but unpublished, study by a Working Party of the United Kingdom Environmental Law Association, chaired by Mr. Justice Carnwath prior to his elevation to the bench. There has been at least one international conference devoted to it, and there have been various analyses of alternative models in specialist journals. This study is different. Its purpose has been to explore the applicability of the concept to the land-use planning system in England and Wales. To do this has involved: 

1

undertaking a methodical analysis of the concept of an environmental court;

Vellore Citizens Welfare Forum v Union of India 1996 SC 2715; (1996) Journal of Environmental Law, Vol 9, No 2; 387. 2 Charan Lal Sahu v Union of India AIR 1990 SC 1480. 3 MC Mehta vKamalnath (1997) 1 SCC 388 4 MC Mehta v Union of India AIR 1997 SC 734. Other cases include Jaganath v Union of India 91997) 2 SCC 87 and P Navin Kumar v Bombay Municipal Corporation (1999) 1 SCC 120, which enforced protection of the coastal environment.

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 examining experience in other jurisdictions where environmental courts are in operation; 

evaluating those experiences in accordance with a conceptual framework;



examining current experience in England and Wales, and

 exploring the potential applicability of the environmental court concept to England and Wales. The specific impetus for the research project was the “Prior Options” review of the Planning Inspectorate that was conducted in 1995-96, which concluded that the Agency should remain in place. There had been some discussion during the course of that review of the Environmental Court option, but it was felt that the discussion lacked a systematic description and analysis of the whole concept. Hence this research project. But it was also recognised that the project needed to address the wider context of environmental regulatory activity, and not just town and country planning. Nonetheless, its focus on the planning appeals system made it suitable that it should fall within the Planning Research Programme.

1.2 Background pressures Other proposals and pressures for change had been evolving in parallel, and it was thought appropriate that the project should take account of them. They included:

1.2.1 European Union law The first is the impact of EU law on land-use (eg, environmental assessment and habitat protection), on environmental protection, and emergent policy in relation to the enforcement of environmental controls and access to environmental justice. The British Government has welcomed the general proposition that there should be easier access to national courts, whilst doubting how far it was proper for the Community to involve itself in matters regarded as being for the competence of national governments, and it has also been endorsed in general terms by the influential House of Lords European Communities Committee5. The Commission’s Green Paper on civil liability for environmental damage published in 1993, as with the draft directive on liability for damage caused by waste which it effectively superseded, posed several questions about access by environmental groups and individuals to the courts to pursue remedies in relation to environmental damage. The Green Paper is likely to be followed shortly by a much-delayed White Paper, which is likely to propose that environmental groups should for the future have a right of application to national courts for remedies relating to environmental damage. This might be closely comparable to existing private law remedies for property damage (eg, an injunction, or restitution for expenditure on cleanup); or it may have a public law element (eg, an order against a public authority to 5

Session 1997-98; Second Report, Community Environmental Law: Making it Work (HL Paper 12; July 1997), para. 102.

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ENVIRONMENTAL COURT PROJECT: FINAL REPORT

pursue appropriate remedies). The proposal clearly has implications for a specialist environmental court. More profoundly, there is the problem at European level of the dismal record of Member States in transposing, implementing and enforcing environmental legislation, most of it, still, legislation that was agreed by unanimous voting by those same Member States in the Council of Ministers. Were a national police force to be confronted by such prolonged evidence of unresolved lawlessness at the highest levels, it might start to have qualms about its effectiveness. The European Commission is not, of course, a police force, but it is charged with the guardianship of the Treaties6, and it has a duty to uphold Community environmental law. This is a particularly onerous duty. Community law in other areas, such as competition, has a capacity to be self-executing because it directly affects economic interests. But environmental law does not. The Commission enjoys a monopoly of access to the European Court of Justice to pursue complaints against Member States, yet it is not adequately resourced or organised to exercise its policing role satisfactorily. It does not yet undertake any systematic examination of the adequacy of arrangements in Member States for the transposition of legislation, let alone those for its implementation and enforcement; nor is this a suitable role for the European Environment Agency. So its enforcement strategy is inevitably haphazard and uneven. By 1996, over 600 environmental complaints and infringement cases were outstanding against Member States, with eighty-five of the latter awaiting determination by the European Court of Justice. The risks that these failures give rise to are widely recognised, notably by the Commission itself. In its 1996 Communication7 it observed, with commendable frankness: “Achieving the goal of a high level of environmental protection is only possible if our legal framework is being properly implemented. If the strong acquis communautaire on the environment is not properly complied with and equally enforced in all Member States, the Community’s future environmental policies cannot be effective and its Treaty objectives cannot be fully and constantly met. The environment will either remain unprotected or the level of protection in different Member States and regions of the Community will be uneven and might, inter alia, lead to distortions of competition.” These defects undermine both the raison d’être and the credibility of the Community’s environmental policy. The European Court has developed some highly effective supplementary measures to bring pressure on Member States to transpose directives. 6

Art 155. Implementing Community Environmental Law. Communication to the Council of the European Union and the Parliament COM(96)500. October 1996; para 3; and see also the Council Resolution of October 7, 1997. The Communication, para 43, also announced the Commission’s intention to would examine the need for guidelines on the access to national courts by representative organisations, with a view to encouraging the application and enforcement of Community environmental legislation in the light of the subsidiarity principle, taking into account the different legal systems of the Member States. 7

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The doctrine of direct effect8, and the Francovich9 doctrine which provides for liability to damages, both provide remedies for those whose rights are adversely affected by a State’s failure in this respect. But therein again lies the irony for environmental provisions. Rarely is an environmental directive likely to be interpreted as providing direct and unconditional protection of individual rights: the interests protected by it are likely to be collective rather than individual.

1.2.2 The European Convention on Human Rights For nearly 50 years from its accession to the European Convention in 1950, the United Kingdom Government resisted proposals to incorporate the Convention into domestic law. This meant that, although Convention rights could be referred to and applied in discretionary decision-making, including in planning and environmental matters10, alleged breaches of the Convention had to be pursued by United Kingdom citizens ultimately by way of complaint to the Commission in Strasbourg, then if ruled admissible, by application to the Court. That situation was changed by the Human Rights Act 1998. 1.2.2.1 The Human Rights Act 1998 In constitutional terms, this Act is of fundamental importance, and much was made in the Parliamentary debates of it being the first major legislation affecting human rights since 1689. Yet it is not exactly a major constitutional resettlement. All it does, as the Government’s White Paper11 conceded, is to repatriate the rights contained in the 1950 European Convention on Human Rights (on which the United Kingdom led the drafting, and was the first signatory). It allows disputes to be dealt with in the courts of this country, rather than requiring victims to take their cases to Strasbourg at great expense and delay. 8

Comitato de Coordinamento per la Difesa della Cava and others v Regione Lombardia and others, C236/92 [1994] ECR I-483, where the Court summarised its jurisprudence on this (referring in particular to the judgments in Case 8/81 Becker v Finanzamt Mnster-Innenstadt [1982] ECR 53 and Case 103/88 Fratelli Costanzo v Commune di Milano [1989] ECR 1839) as being that, wherever the provisions of a directive appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise, those provisions may be relied upon by an individual against the State where the State fails to implement the directive in national law by the end of the period prescribed or where it fails to implement the directive correctly. A Community provision is unconditional where it is not subject, in its implementation or effects, to the taking of any measure either by the institutions of the Community or by the Member States (see in particular the judgement in Case 28/67 Molkerei-Zentrale Westfalen v Hauptzollamt Paderborn [1968] ECR 143). Moreover, a provision is sufficiently precise to be relied on by an individual and applied by the court where the obligation which it imposes is set out in unequivocal terms (judgements in Case 152/84 Marshall v Southampton and South-West Hampshire Health Authority [1986] ECR 723 and Case 71/85 Netherlands v Federatie Nederlandse Vakbeweging [1986] ECR 3855). 9 In Francovich v Italian Republic, ECJ Case 6&9/90, [1991] I ECR 5357 the Court held that individuals could recover from the State damages for loss sustained by them as a result of the State’s failure to transpose a directive, so long as the directive could be said to confer rights on those individuals, that those rights were identifiable on the basis of the directive and that there was a causal link between the Member State's infringement and the damage sustained. 10 See eg the confirmation by Baroness Chalker in 1994 that Ministers would be required to comply with the terms of the Convention (Hansard, December 7, 1994). 11 Rights Brought Home (Cm 3782; October 1997)

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ENVIRONMENTAL COURT PROJECT: FINAL REPORT

There are five main components:   





Convention rights are incorporated into domestic law (section 1); Legislation is for the future to be read and given effect in a way which is compatible with these Convention rights (section 3), taking into account the jurisprudence of the European Court of Human Rights and the Commission (section 2); If the legislation is found to be incompatible, the courts may make a declaration to that effect (section 4). This does not affect the continuing validity of the legislation, but provides an expedited procedure for the Government to introduce rectifying legislation to parliament (section 11); It becomes illegal for a public authority to act in a way which is incompatible with convention rights (section 6) and a victim of such an unlawful act may bring proceedings against such an authority (which includes local authorities and tribunals such as Planning Inspectors) For all new legislation, Ministers must make a statement before Second Reading as to whether in their opinion the provisions of the Act are compatible with Convention rights.

As to the rights protected by the Act, some preliminary observations are necessary. First, the Convention shows its age. It encapsulates the ideals which were paramount in postwar Europe. But it has not been updated to reflect contemporary concerns, such as for the environment. However, the approach of the European Court of Human Rights has been to treat it as living document, and to take a liberal interpretation. The effect the Act will have on planning and environmental practice in the United Kingdom therefore depends on how far our own judges are willing to go in the same direction, and to spell new rights out of the unpromising material the Convention hands them. And that in turn depends upon practitioners coming to grips with the requirements of the Act and the opportunities it offers for new approaches to the redress of grievances. There has been considerable interest in the Convention from some High Court judges even before its incorporation, reflecting their belief that it could be taken as an embodiment of the principles of the common law12. 1.2.2.2 Procedural rights: Article 6 and the Bryan case The principal provisions of the Convention relating to planning and environmental protection include some that are procedural as well as those relating to substance. For process, the main provision is Article 6, which protects the right to a fair trial: “in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. . . .”

12

See eg Bugdaycay v Secretary of State for the Home Department [1987] 1 All ER 720; Brind v Secretary of State for the Home Department [1991] AC 696; R v Ministry of Defence, ex parte Smith [1996] 1 All ER 257; Chesterfield Properties plc v Secretary of State for the Environment (Laws J, July 24, 1997)

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In Bryan v United Kingdom13, the applicant challenged proceedings that had occurred in England on an enforcement notice requiring him to demolish two brick buildings on his property. Upon the dismissal of that appeal by a planning inspector, he further appealed on points of law to the High Court. The applicant accepted, and the Court agreed, that the proceedings before the planning inspector constituted a “fair hearing” for the purposes of Article 6.1 of the Convention, but contested whether the inspector was an independent and impartial tribunal. The Court was not satisfied that he was. In accordance with established case law of the Court, regard must be had to factors such as the manner of appointment of the tribunal and to their terms of office, to the existence of guarantees against outside pressures and to the question whether the body presents an appearance of independence. Whilst it was true that the inspector was required to decide the enforcement appeal in a quasi-judicial manner, and to act independently, impartially and fairly, it was also true that the Secretary of State could at any time issue a direction revoking the inspector’s powers to determine the appeal. The Court held that14: “In the context of planning appeals the very existence of this power available to the executive, whose own policies may be in issue, is enough to deprive the inspector of the requisite appearance of independence, notwithstanding the limited exercise of the power in practice and irrespective of whether it exercise was or could have been in issue in the present case.” However, the Court had previously accepted, in Langborger v Sweden15, that such defects in relation to a tribunal could be overcome if it were subject to the supervision of a judicial body that has full jurisdiction and itself satisfies the requirements of Article 6.1. There was a right of appeal to the High Court against a decision on an enforcement appeal. It was limited to a point of law, and therefore did not embrace all the issues raised by the enforcement notice. Nonetheless, the grounds of judicial review were wide enough to provide the necessary safeguards: the decision could be set aside if it had been made by reference to irrelevant factors, or if the evidence relied upon by the inspector was not capable of supporting a finding of fact, or if the decision was based on an inference from the facts that was perverse or irrational in the sense that no inspector properly directing himself would have drawn such an inference. The court also had regard to the duty incumbent on inspectors to exercise independent judgement, the requirement that inspectors must not be subject to any improper influence and the stated mission of the Planning Inspectorate to uphold the principles of openness, fairness and impartiality. The Court also noted that it was a frequent feature of judicial control of administrative systems found throughout Party states that an appeal tribunal would have responsibility for findings of fact, and that a higher court would not have power to substitute its own findings of fact. Indeed, the Court concluded, “the subject matter of the contested decision by the inspector was a typical example of the exercise of discretionary judgement in the regulation of citizens’ conduct in the sphere of town and country planning”. The Court concluded unanimously that the remedies available to the 13

Bryan v United Kingdom [1996] EG 137; [1996] 1 PLR 47 (ECHR); 21 EHRR 342 [1996] 1 PLR at 58. 15 June 22, 1989. Series A No 155. 14

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ENVIRONMENTAL COURT PROJECT: FINAL REPORT

applicant under British town and country planning law satisfied the requirements of Article 1.6 of the Convention. Five substantive issues arise from the Bryan case, in light of the Human Rights Act: (1) whether the Government is now prevented from doing that which it has proposed from time to time to help speed up the appeals process, which is to take away altogether the right to be heard in planning and environmental appeals, and to substitute for it a power for the Secretary of State to determine in which cases it should be allowed. To do that would be to deny the right to a fair hearing from an independent and impartial tribunal, and would prima facie constitute an infringement of Article 6.1; (2) whether the current arrangements in which appellants may be denied a public local inquiry, but offered instead an informal hearing16, contravene the right to a public hearing. The Convention is not prescriptive about the type of hearing, and there is no reason to doubt that an informal hearing is taken by any less independent or impartial a tribunal as a public local inquiry. The question of whether the proceedings are “fair” an aggrieved appellant has a right to test by appeal to the High Court17; (3) whether the requirement that was introduced in 199218 to obtain leave from the High Court to challenge proceedings on an enforcement appeal is incompatible with Article 6. This barrier was introduced subsequent to Mr Bryan’s appeal to the High Court, which had been dismissed. He had been refused leave to the appeal to the Court of Appeal, both from the High Court and the Court of Appeal. It is not an obstruction to meritorious cases proceeding, but a filter mechanism, intended to prevent appellants from buying further time for unlawful activity by keeping proceedings alive. It is unlikely to be seen as a dilution of the supervisory powers of the High Court19. (4) whether the finding that the planning inspector’s independence and impartiality was prejudiced by the Secretary of State’s powers to recover jurisdiction is a serious flaw, notwithstanding its general irrelevance in practice and notwithstanding that it was thought to be overcome by the High Court’s jurisdiction. This remains an issue in our later consideration of the potential applicability of the environmental court concept in England and Wales, but political accountability for quasi-judicial decisions such as this, which not only affect the environment but involve an element of policy and non-legal judgment, is not only common elsewhere in Europe (as the Court acknowledged) but desirable in general. The artificiality of the present approach derives from its history, which we track in more detail in Chapter 10, and 16

DOE Circular 15/96, Planning Appeals. See eg Dyason v Secretary of State for the Environment[1998] 2PLR 54. 18 Town and Country Planning Act 1990, s.289(6). 19 Indeed we understand that in a second complaint by Mr Bryan to the European Commission (application no 22237/93; decision of March 12, 1996) it was decided that although he had been refused leave to appeal under s.289 on a further appeal, the scope of the review was still sufficient to comply with Article 6. 17

CHAPTER 1: INTRODUCTION

17

the increasingly fictional character of the legal relationship between planning inspectors’ functions and those of the Secretary of State. Formally securing an inspector’s independence and impartiality from the Secretary of State could be achieved in the great bulk of cases by allocating all planning appeals wholly to inspectors (or, preferably, to the Planning Inspectorate). If necessary, those falling within certain pre-defined categories could be assigned instead to the Secretary of State (though the question still remains whether, even in high-policy cases, decisions can better be taken by inspectors who have seen the site and heard the parties, than by Ministers and civil servants who have not); (5) whether the absence of a third-party right of appeal on merits is a denial of a neighbours’ rights under Article 6.1. 1.2.2.3 Collective rights Article 6 may well protect individual rights, but its value in protecting collective interests was limited by a decision of the Court in 1997 in Balmer-Schafroth v Switzerland20 when rejecting a case brought by villagers living in the containment zone surrounding a nuclear power plant, on the grounds that they had failed to demonstrate that any specific right of theirs was at stake when the State granted an extension to operate the station: “. . . the applicants opposed the application for an extension of the operating licence because of the risks which they maintained such an extension entailed for the life and health of the local population, to which they belonged. At no stage in the proceedings had they claimed to have suffered any loss, economic or other, for which they intended to seek compensation . . They endeavoured to prove the existence of the alleged technical deficiencies and the need to lessen the resulting damage to the population and the environment in general by every available means. However, they did not for all that establish a direct link between the operating conditions of the power station which were contested by them and their right to protection of their physical integrity [under Swiss law], as they failed to show that the operation of the Muhleberg power station exposed them personally to a danger that was not only serious but also specific and, above all, imminent.”21 Thus, the link between the Government’s decision and the right invoked by the applicants was too tenuous and remote22. Finding a “victim” may also prove restrictive in this country, because only a victim will have locus under section 7 of the Human Rights Act 1998 to bring proceedings against a public authority.

20

Balmer-Schafroth v Switzerland; August 26, 1997 (67/1996/686/876) Ibid., paras 33 and 40. 22 Note, however, the powerful dissenting judgment of Judge Pettiti, supported by six other judges, which maintained that the caselaw of the Court established that (1) where the right in issue concerns an aspect that is decisive for the dispute and its consequences, Article 6 is applicable; (2) if Article 6 is applicable, there must be access to the courts, so that appropriate proceedings must be brought before a judicial authority, and an effective remedy; and (3) the executive of a State is not a judicial authority and does not constitute an independent and impartial administrative or judicial tribunal. 21

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ENVIRONMENTAL COURT PROJECT: FINAL REPORT

1.2.2.4 Substantive rights There are three principal substantive provisions that are relevant to our discussion23: Article 8, which establishes a right to respect for private and family life and the home, and which prohibits interference with it by a public authority except where it is (1) lawful; and (2) necessary in the interests of such matters as public safety, national economic well-being and protection of health. But it was held sufficient in Lopez Ostra v Spain24 to found a claim that the construction of a waste treatment plant next to the applicant’s house, which had caused severe local pollution and health problems, was in violation of the applicant’s rights. This was the case even though the State did not own the plant: it was sufficient that the municipality had allowed it to be built on their land and that the Government had subsidised it. Similarly it was held to be a material provision in a claim in respect of aircraft noise from London’s Heathrow Airport25. Article 16, which protects against discrimination, and which, together with Article 8, was at issue in Buckley v United Kingdom26 where a gypsy maintained that planning legislation was discriminatory against gypsies by prohibiting them from following their traditional way of life by stationing caravans on unoccupied land. The Court held for the Government, but it was divided, and it took a different line from the Commission for Human Rights which had conducted a preliminary review of the case. Article 1 of the First Protocol: this article provides for the protection of property27, and: (1) denies the State any right to deprive citizens of their possessions except in accordance with law, but (2) allows the State to control the use of property in the national interest. Hence there is a balance to be struck, and a test of proportionality to be applied when comparing the public objective and the private cost28. It clearly has a resonance in compulsory purchase cases, where property is physically taken, and where the Court has managed to insert a requirement that reasonable compensation should be a condition of lawfulness29. The Court has also refused to tolerate long drawn out planning blight30. 23

As to their potential implications for planning and environmental law in England and Wales, see Tim Corner, “Planning, environment and the European Convention on Human Rights” [1998] JPL 301. 24 Case of Lopez Ostra v Spain (41/1993/436/515); December 9, 1994; 20 EHRR 277. 25 Powell and Rayner v United Kingdom (1990) 12 EHRR 355. 26 26 September 1996; [1996] JPL 1018; [1997] 2 PLR 10; 23 EHRR 101 27 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 28 For a general review of the ECHR’s jurisprudence on the Protocol, see L Sermet, The European Convention on Human Rights and Property Rights, Human Rights Files No 11 (Council of Europe Press, 1992); Curtis, J “Comparison of Regulatory Takings under the United States Constitution and the European Convention on Human Rights” 14 European L Rev 67 (1989); Suetons, L-P, “Property Rights and Expropriation: the European Dimension” in Erasmus, G Compensation for Expropriation: A Comparative Study (2 vols; Reese & UKNCCL; 1990) vol. II; 216. 29 Lithgow v United Kingdom 8 EHRR 329 (1986).

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The provision did not, famously, protect the Duke of Westminster in his battle against the leasehold reform legislation of the 1960s: he had been deprived of property, but in the public interest31. But the Court has applied it also, in line with the jurisprudence of the US Supreme Court under the Fifth Amendment to the US Constitution, to nontangible property, such as the revocation of a planning permission or discharge consent; though not to the denial of a planning permission in the first place32, unless, perhaps, that leaves the land without any commercial use or value33. 1.2.2.5 Implications for an environmental court Nothing in the Act, or in the jurisprudence so far developed under the Convention, requires in itself the creation of a specialist environmental court. But it nonetheless has implications for our study, which may be suggested to be the following: (1) The Act confers positive rights, rather than the negative liberties enjoyed under English common law; (2) One of the primary purposes of the Act is to make it easier to take advantage of rights under the Convention. Local planning authorities are bound by them, and planning inspectors, the courts and the Lands Tribunal must all take them into account; (3) The Bryan case has left a question mark over the political independence of the Planning Inspectorate, to which we shall return in a later chapter. Despite the steady growth of the Inspectorate’s de facto independence, the constitutional reality remains that it is an agency based within the Government Department which has administrative supervision of the planning and environmental protection systems for England, and is de jure subject to the direction of the Secretary of State; (4) The Act provides an opportunity for a proactive approach by the judiciary to human rights issues relating to land-use and the environment. It is likely that judges will adopt a self-denying ordinance in the exercise of their power to declare legislation incompatible with the Human Rights Act34, and that they may go to extraordinary ends to achieve this. But it will be easier for them to hold that certain administrative interpretations and practices are incompatible with the Convention;

30

Sporrong and Lonnroth v Sweden (1982) A 52; 5 EHRR 33. James v United Kingdom 8 EHRR 123 (1986). 32 Jacobsson v Sweden (1987) 33 See eg Baggs v United Kingdom, Commission Report July 8, 1987 but the case was subsequently settled. 34 But the potential for doing so is demonstrated by R v North Lincolnshire Council, ex p Horticultural and Garden Products Sales (Humberside) Ltd (Lightman J, July 31, 1997; unreported) where legislation intended to update old minerals planning permissions provided, as a sanction, that any permission not notified in time and included on the authority’s list would lapse. There was no means thereafter of rectifying what was agreed to be an obvious mistake in the list. The owners had been deprived of a property right, without compensation. 31

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ENVIRONMENTAL COURT PROJECT: FINAL REPORT

(5) This is particularly likely in relation to compulsory purchase, where Article 1 of the First Protocol may require a heightened review of the necessity for compulsory acquisition than that required under the Town and Country Planning Act 1990, s.22635; (6) The Act also may require a fresh approach to the Wednesbury principles in planning and environmental cases, developing principles of proportionality; (7) In light of these tasks, there is a question mark over the adequacy of the training and expertise of the judiciary, which was acknowledged by the Lord Chancellor in debates over the Bill in the House of Lords. It is certainly arguable that one means of addressing this and the other issues would be through the creation of a specialist jurisdiction, capable of developing its own jurisprudence under the Act. However, neither the European Convention nor the Human Rights Act 1998 provides justification in itself for setting up a specialist environmental court.

1.2.3 the Rio Declaration Principle 10 of the Rio Declaration provides: “Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.”

1.2.4 the Aarhus Convention The Rio Declaration provided a framework, upon which the United Nations Economic Commission has since undertaken further work for Europe (UNECE). In 1995 the Commission drafted a set of Guidelines on Access to Environmental Information and Public Participation in Environmental Decision-Making which were submitted to the Third Ministerial Conference held in Sofia, Bulgaria in October 199536. The Guidelines were in three parts: access to environmental information; public participation; and administrative and judicial proceedings. The Ministers endorsed the principles and invited UNECE to review their implementation and to report to the next conference in May 1998 in Denmark, stressing the importance of developing a regional convention on public participation with appropriate involvement of non-governmental organisations. UNECE then established in 1996 an Ad Hoc Working Group for the preparation of the draft convention, drawing on the ECE Guidelines and their implementation, relevant 35 36

See further the Chesterfield Properties case at footnote 12 supra. The principal provisions of the guidelines relating to public participation

CHAPTER 1: INTRODUCTION

21

provisions of other recent ECE Conventions and the Rio Declaration on Environment and Development. The Convention was eventually concluded at Aarhus in Denmark in June 1998. Its objective is stated in Article 1: “In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and wellbeing, each Party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention.” The substantive requirements that are of particular relevance to this research project are those of Article 9, which provides: Article 9 Access to justice 1. Each Party shall, within the framework of its national legislation, ensure that any person who considers that his or her request for information under article 437 has been ignored, wrongfully refused, whether in part or in full, inadequately answered, or otherwise not dealt with in accordance with the provisions of that article, has access to a review procedure before a court of law or another independent and impartial body established by law. In the circumstances where a Party provides for such a review by a court of law, it shall ensure that such a person also has access to an expeditious procedure established by law that is free of charge or inexpensive for reconsideration by a public authority or review by an independent and impartial body other than a court of law. Final decisions under this paragraph 1 shall be binding on the public authority holding the information. Reasons shall be stated in writing, at least where access to information is refused under this paragraph. 2. Each Party shall, within the framework of its national legislation, ensure that members of the public concerned (a) Having a sufficient interest or, alternatively, (b) Maintaining impairment of a right, where the administrative procedural law of a Party requires this as a precondition, have access to a review procedure before a court of law and/or another independent and impartial body established by law, to challenge the substantive and procedural legality of any decision, act or omission subject to the provisions of article 638 and, where so provided for under national law and without prejudice to paragraph 3 below, of other relevant provisions of this Convention. What constitutes a sufficient interest and impairment of a right shall be determined in accordance with the requirements of national law and consistently with the objective of giving the public concerned wide access to justice within the scope of this Convention. To this end, the interest of 37

Article 4 obliges parties to the Convention to ensure access to environmental information, at the request of any person 38 Article 6 obliges Parties to adopt and apply a system for environmental assessment and specifies the opportunities that must be provided for public participation under such a system.

22

ENVIRONMENTAL COURT PROJECT: FINAL REPORT any non-governmental organisation meeting the requirements referred to in article 2, paragraph 539, shall be deemed sufficient for the purpose of subparagraph (a) above. Such organisations shall also be deemed to have rights capable of being impaired for the purpose of subparagraph (b) above. The provisions of this paragraph 2 shall not exclude the possibility of a preliminary review procedure before an administrative authority and shall not affect the requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures, where such a requirement exists under national law. 3. In addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment. 4. In addition and without prejudice to paragraph 1 above, the procedures referred to in paragraphs 1, 2 and 3 above shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive. Decisions under this article shall be given or recorded in writing. Decisions of courts, and whenever possible of other bodies, shall be publicly accessible. 5. In order to further the effectiveness of the provisions of this article, each Party shall ensure that information is provided to the public on access to administrative and judicial review procedures and shall consider the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice.”

There are effectively three parallel duties imposed by this Article which are relevant to our study, and all of them are required to provide “adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive”40: (1) the first relates solely to access to environmental information, and requires Parties to ensure that those denied information under Art. 4 have access to a legal review procedure. If it is to be by access to a court, the Party must also provide a cheap and quick means of either requiring the public authority to reconsider its decision or external review of that decision by an independent and impartial body. This implies that a Party cannot rely simply upon normal judicial review remedies41; (2) an obligation to ensure access to a review procedure before a court of law and/or another independent and impartial body established by law, to challenge the legality of any decision, act or omission subject to Article 6 (and under other provisions of the Convention where national law so allows). This is a significant obligation, because Article 6 extends broadly to planning decisions that are subject to environmental assessment. These are listed in Annex I, and although the list is based upon the amending Council Directive 97/11 on environmental 39

These requirements are that they be an NGO “promoting environmental protection and meeting any requirements under national law”. Organisations with these qualities are to be deemed to have an interest in environmental decision-making. 40 Para. 4. 41 The Aarhus Convention has therefore caused the Government to pay special attention to environmental information in its design of new legislation for freedom of information: see further p. 403.

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assessment, it includes as projects where assessment is mandatory not only those projects listed as mandatory in Annex I to the EC Directive, but also some projects drawn from Annex II of the directive where assessment is a matter for the Member States to determine their own thresholds. This approach is based on the IPPC Directive42; (3) an obligation to allow access by members of the public to administrative and/or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment. This is stated to be subject to meeting the criteria, if any, laid down in national law; and whilst these may presumably include a requirement of an “interest”, because the provisions that overcome such a threshold for the purposes of Article 6 do not apply to this article, too high a threshold would clearly impede the substantive object of the provision. We consider later in this report the extent to which existing provision in England and Wales meets the requirements of the Convention, and their implications for our alternative models of an environmental court.

1.2.5 The Deregulation Unit’s Model Appeals Mechanism The Deregulation Unit (now the Better Regulation Unit) proposed a model appeals mechanism to overcome the problem that, in relation to some areas of administrative control, there were no statutory appeal rights, and where there were, there tended to be a “bewildering array of processes and mechanisms that were expensive and often drawn out”43. The Unit’s initiative led to the making of the Deregulation (Model Appeal Provisions) Order 199644, under which the Secretary of State prescribed a set of model provisions in relation to appeals against enforcement action with a view to their being incorporated, if thought fit and with or without modifications, in future enactments imposing restrictions upon businesses. The rules impose common requirements relating to the making, amending and withdrawing of appeals; the appointment of the tribunal; the response to the appeal; procedures for hearings and written representations and for pre-hearing reviews and decisions. The two members of the tribunal, in addition to the chairman, are to be drawn from, respectively, persons considered by the Minister by reason of experience or otherwise to have special knowledge of the matters likely to be considered by the tribunal; and the other to be representative of the interests of persons in relation to whom the enforcement action may be taken under the relevant legislation. The Model is not mandatory, and it does not apply retrospectively. Hence it has no direct applicability to existing land-use and environmental appeals. But if it were to become widely adopted as a standard approach in future regulatory legislation, it would have longer-term implications for specialist tribunals generally.

42

Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control (OJ No L 257, 10.10.1996, p. 26), now transposed by the Pollution Prevention and Control Act 1999. 43 Deregulation Unit, Consultation Paper on Model Appeals Mechanism 1996. 44 SI 1996 No 1678.

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1.2.6 Lord Woolf’s review of the civil justice system Lord Woolf’s review of the civil justice system, the final report for which was published in 199645 did not include any assessment of a specialist court for environmental issues, but it did lay significant emphasis on the qualities of access to justice which underpin the Aarhus Convention. Moreover, it has led to far reaching changes in the civil justice system, in which responsibility for the management of civil cases proceeding in the courts has been transferred from the parties to the court.

1.3 Why an environmental court? the proposals for reform The primary aim of the research has been to provide a systematic description and analysis of the Environmental Court concept in its various formulations, relating them to the planning appeals system in England and Wales, so that the necessary background material would be available to inform any future review of the system. No system of regulation in England and Wales enjoys as many well-intentioned proposals for reform, advanced by widely disparate parties, as the planning system, and its arrangements for dispute resolution are no exception. The most significant in recent years have been the following:

1.3.1 The Nuffield Foundation Report on Town and Country Planning The Report46 expressed disquiet with the practice of planning appeals being determined by only one inspector, which it felt “runs counter to accepted practice in other areas of public administration in respect of appeals”, and urged instead the setting up of regional planning appeal tribunals. These would consist of a chairman drawn from the Planning Inspectorate (or, in a case involving a substantial legal element, a lawyer), plus two persons representative of both environmental and development interests drawn from a panel submitted to the appropriate regional office of the DOE by counties within the region. Although the tribunals would be regionally based and administered, they would come under the overall supervision of the Chief Planning Inspector and under the aegis of the Council on Tribunals.

1.3.2 The Justice-All Souls Review of Administrative Law This study, published in 198847, devoted a whole chapter to inquiries, and planning inquiries in particular. The Committee recommended, inter alia, that the possibility of replacing enforcement appeal inquiries by standing Enforcement Tribunals should be investigated, that planning inspectors should be recruited from a broader background, and that in more complex cases, two inspectors should conduct the inquiry. They also

45

Access to Justice. Final Report to the Lord Chancellor on the civil justice system in England and Wales London. HMSO. 1996 46 Town and Country Planning. A report to the Nuffield Foundation by a Committee of Inquiry appointed by the Foundation. (Chairman: Lord Flowers) 1986, p.164. 47 Administrative Justice: some necessary reforms. Oxford. Clarendon Press. 1988.

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proposed a third-party right of appeal against the grant of planning permission by a local planning authority. None of the recommendations has been implemented.

1.3.3 The Carnwath Report on Enforcing Planning Control The Carnwath Report48, commissioned by the Secretary of State for the Environment from Robert Carnwath QC (as he then was) suggested a wider application of the JusticeAll Souls proposal, on which Carnwath commented: “3.7 There may be more merit in the suggestion of a new Tribunal if its role went beyond that of enforcement, and embraced the whole appellate function in planning. Suggestions of this kind have been made at various times [referring to the Nuffield Report]. Such a Tribunal would not raise the problem of separating issues and might have more chance of achieving the necessary status. 3.8 It could also be structured so as to incorporate and build on the present Inspectorate. Inspectors now decide the majority of planning appeals without any reference to the Secretary of State, although he remains answerable for their decisions. There would be logic in ending this function and reconstituting the Inspectorate in the form of a Planning Appeal Tribunal. If this were done, and if it were given an appropriate legal structure, then it might be acceptable for it also to be given the necessary powers of making orders and levying penalties in enforcement cases. 3.9 Such a proposal raises issues going well beyond my terms of reference. For present purposes it is sufficient to say that I do not recommend the establishment of a new tribunal limited to enforcement work.” He elaborated further in his conclusions: “6.2 The second problem, to which I have also referred, is the fragmented nature of the enforcement agencies. Ideally there should be one Court or Tribunal, able to interpret and apply the law, to make orders, and to impose penalties for their disobedience. At present these functions are divided between two administrative agencies (the local authorities and the Planning Inspectorate) and various Courts—criminal and civil. Planning enforcement, like some other forms of administrative or environmental control, lies awkwardly between the civil and the criminal areas of jurisdiction. 6.3. I can see a case for a form of Tribunal which is able to encompass the whole range of planning appeal and enforcement work, including the levying of penalties. Alternatively, there may be a case for reviewing the jurisdictions of the various Courts and Tribunals which at present deal with

48

Enforcing Planning Control. London. HMSO. 1989.

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ENVIRONMENTAL COURT PROJECT: FINAL REPORT different aspects of what might be called ‘environmental protection’ (including planning), and seeking to combine them in a single jurisdiction.”

1.3.4 Environmental Courts The notion that reform might extend to environmental issues as a whole, and not simply to the planning system, was further advanced in an article published in Town and Country Planning in 199149. It identified the array of forums under existing law in which environmental disputes could be resolved. They ranged, within the judicial system, from the magistrates’ court, to the Crown Court, the County Court and the High Court; and in the administrative system from planning inspectors to civil servants and others determining environmental appeals. The article identified problems of expertise in the general courts to deal with environmental disputes, with the barriers that the courts erected to restrict access and intervention by third parties, and with the delays in getting to court. It urged that opportunity be taken of the proposal to establish the Planning Inspectorate on an agency basis to review more than merely its management issues, and pointed to experience in New South Wales with the newly established Land and Environment Court. A more wide-ranging approach was advocated in the same year by McAuslan50, who argued for a new environmental ethic in our public and private systems of administration and governance. He maintained that: “Serious thought should be given to the creation of a judicial-type body, an Environmental Court or Tribunal, with a wide ranging jurisdiction through which it could develop, via its decisions, an environmental jurisprudence to help us forward into the new era of a more conscious and deliberate balancing of development and environmental protection, and a more knowledgeable weighing of risks, liabilities and rights.” This would be a court-like body with wide decision-making, advisory and regulatory powers to develop our systems of environmental management in a principled and expert manner and so contribute both to our national and to international environmental jurisprudence. It would cover both public and private law; it would hear civil actions for damages relating to environmental harm; it would be the appellate authority for permits, licences and authorisations; it would deal with compensation for environmental damage claims arising from public works and it could develop an investigative, pro-active jurisdiction.

1.3.5 Lord Woolf’s Garner Lecture The movement towards a specialist environmental court was given a sharp boost by the intervention of Sir Harry Woolf (as he then was), in the course of his 1991 Garner 49

Malcolm Grant, “Environmental Courts” Town and Country Planning June 1991; 165. Patrick McAuslan, “The role of courts and other judicial type bodies in environmental management”, Journal of Environmental Law. Vol 3, No 2 (1991); 195 at 203. 50

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Lecture, “Are the Judiciary Environmentally Myopic?”51 His was a far wider vision than any so far advanced, based on his recent experience in conducting a review into the prisons service. He urged the setting up of a Tribunal with “general responsibility for overseeing and enforcing the safeguards provided for the protection of the environment which is so important to us all”52. He saw a need not to rely exclusively on traditional procedures, but to enable the court to adopt an inquisitorial approach. The Employment Appeal Tribunal would provide a model to some extent, but frequently the issues involved would justify the use of a multi-disciplinary adjudicating panel, with procedures as informal as the nature of the inquiry warranted. There would be a link with the Planning Inspectorate: “In the case of issues of a lesser dimension inspectors, who would be part of the tribunal, could perform a similar role to that which they perform at present. There could be within the structure of the tribunal a system of appeals which differed in their scope as the circumstances required.” The enthusiasm and energy behind the idea was captured in the penultimate paragraph: “. . . what I am contemplating is not just a court under another name. It is a multifaceted, multi-skilled body which would combine the services provided by existing courts, tribunals and inspectors in the environmental field. It would be a ‘one stop shop’ which should lead to faster, cheaper and the more effective resolution of disputes in the environmental area. It would avoid increasing the load on already overburdened lay institutions by trying to compel them to resolve issues with which they are not designed to deal. It could be a forum in which judges could play a different role. A role which enabled them not to examine environmental problems with limited vision. It could, however, be based on our existing experience, combining the skills of the existing Inspectorate, the Lands Tribunal and other administrative bodies. It could indeed be an exciting project.” Lord Woolf’s ideas were further developed at a special conference held in 1992 and organised by the United Kingdom Environmental Law Association. A series of papers examined the concept from different perspectives53. One, by Robert Carnwath QC54, pointed to a two-tier structure which would incorporate the Planning Inspectorate: “A still more radical approach (and one which is closer to what Sir Harry Woolf had in mind) starts from the other end, and looks at the needs of the customers— be they enforcing authorities, allegedly offending developers, or aggrieved neighbours. What all these parties require is, on the one hand, a simple procedure, which incorporates the essential ingredients I have identified; and, on the other, a readily identifiable agency, to which they can refer their disputes, and which can supply the form of Tribunal and machinery best adapted to resolve it. Depending on the nature of the issues, this may take the form of a Court or an expert panel or an individual inspector. The allocation of the dispute to a particular form of 51

Reproduced in the Journal of Environmental Law, Vol 4, No 1, p. 1. Ibid., 13. 53 See further Grant, M (Editor) Environmental Litigation: Towards an Environmental Court? (United Kingdom Environmental Law Association) 1993 54 Carnwath, R “Environmental Enforcement: the Need for a Specialist Court” [1992] JPL 799 52

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ENVIRONMENTAL COURT PROJECT: FINAL REPORT procedure would be a matter for the presiding officer of the agency. This points to a solution which combines the Planning Inspectorate and the new Environmental Division of the Court into a single administration. It would no doubt operate at two levels, with provision for first tier decisions by inspectors or single judges, and review by a panel led by the presiding High Court judge.”

Lord Woolf himself returned to the theme in his Lord Morris Memorial Lecture55 at the University of Aberystwyth in October 1997 where he drew attention to the potential advantages of creating a special Environmental Division of the High Court, or a separate court modelled on the New South Wales Land and Environment Court. But he also sounded several notes of caution, including the need to keep costs down, to avoid complex jurisdictional wrangles and to maintain public respect for the court system.

1.3.6 The Labour Party The Labour Party’s Environment Commission, in its Report In Trust for Tomorrow, 1995, urged strongly the creation of an environmental court. It did not appear, however, in the Labour Party’s manifesto for the 1997 General Election.

1.4 The concept of an environmental court It will be seen from the brief survey above of arguments that have been advanced for an environmental court, that there is no single concept, but rather a mix of aspirations. They are based upon different analyses of the problem to be addressed, and different visions of the role of such a new body. However, there are certain common features. We should expect an environmental court to have some or all of the following features, which stem variously from the words “environment” and “court”.

1.4.1 Specialist and exclusive jurisdiction The first, self-evident, criterion is that the court should have a specialist jurisdiction relating to the environment. The more widely cast its environmental jurisdiction, the more likely it is to be an environmental court. A body whose jurisdiction is confined to town and country planning is unlikely to qualify, unless the system of planning is a highly integrated system. It is also anticipated that an environmental court will have an exclusive jurisdiction, and not one that is shared with the general courts.

1.4.2 Power to determine merits A court may have original and/or appellate capacity. It is a common feature of most legal systems that regulatory and administrative matters respecting the environment are assigned to local authorities and administrative agencies, and that the adjudicative function comes into play at a higher level. The authority or agency may need to invoke special enforcement assistance from a court or tribunal; or an unsuccessful applicant may have a right of appeal to such a body; or a third party may have a right of objection. In these cases, it is common for the court or tribunal to have full jurisdiction to redetermine the matter at stake, and not simply to entertain an appeal on law. Dealing 55

“The courts’ role in achieving environmental justice”, as yet unpublished.

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with environmental issues on merits demands an expertise not common in general courts, and may also involve judicial officers in policy issues.

1.4.3 Integration/fragmentation Environmental dispute resolution is frequently allocated to different agencies on the basis of functional distinctions which have lost their logic as the scope of environmental protection generally has grown, and as the interconnectedness of environmental problems has become better understood. In many countries, for example, the overlapping functions of land-use planning and environmental protection are vested in different agencies. The planning function tends to be given primarily to local authorities, with limited supervision by regional and/or national government, and with dispute resolution primarily in the courts (or, as in England and Wales, through an administrative process). Environmental regulation, particularly in relation to industrial processes, tends to be a function of central government, though it may be devolved to state or regional level. In many Federal countries (e.g., USA, Italy, Spain and Germany) this demarcation is secured by the national constitution, which stands as a barrier to effective integration of the two functions. The competences of each level are defined by law. The fragmentation of the primary regulatory functions may be paralleled by fragmentation in the forums in which appeals are determined; or all challenges may be in the ordinary courts. This leads us to one hallmark of the environmental court concept, which would be its enjoyment of a jurisdiction that goes beyond any single environmental sector (eg, water or waste); i.e., an ability to adjudicate across the whole range of environmental regulation, and to enjoy a jurisdiction that is integrated at two levels: between subject areas (eg, between land-use planning and controls over discharges to the environment); and between types of suit (eg, public law; civil action; enforcement; criminal prosecution).

1.4.4 Process The words “court” or “tribunal” connote, at the very least, a body which bears some of the hallmarks of a judicial approach to dispute resolution. They imply a body which is independent of government and politically unbiased; which conducts all or part of its business by way of hearings which are open to the public; which has rules of procedure governing the institution of proceedings before the court and their conduct; and which has the power to make binding awards. The words “court” or “tribunal” seem to be relatively interchangeable in practice: the New Zealand Planning Tribunal became its Environmental Court in 1996, with no change in function or procedure. The principal difference seems to be whether the body incorporates non-judicial expertise, and the extent to which it exercises a discretion embodying policy judgement (quasi-judicial) as opposed to the application of legal rules to proven facts (judicial). Neither is decisive. The British Employment Appeals Tribunal would be a tribunal measured by the first; and a court measured by the second. But the procedures for hearings and determinations will not be dissimilar between the two models, albeit with a general tendency to greater informality in a tribunal than in a court.

1.4.5 Dispute resolution There is also a well-understood relationship in regulatory contexts between:

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ENVIRONMENTAL COURT PROJECT: FINAL REPORT



the legislative process;



the policy-making process that takes place within the powers conferred by the legislation as a means of ensuring effective and consistent use of those powers;



the regulatory process and



the dispute resolution process as the policy comes to be applied on a case-by-case basis.

The role of a “court” or “tribunal” is most commonly in the fourth of these arenas. Legislation is for Parliaments; policy is for governments. But where legal controls clash with private rights, then traditional methods of adjudication come into play. However, the distinction is never in practice as clear-cut as this. Legislation may confer rights on individuals to object to policies drafted by public agencies, and confer on them a right to pursue their objection by participating in a hearing. An adjudicative body may nonetheless be classifiable as a court, even though not narrowly confined to conventional ways in its approach to its work. Hence an environmental court or tribunal may have an involvement in policy-making, albeit at a supervisory level; for example by hearing objections to a draft development plan, or even by conducting an inquiry into proposals for a development project which inevitably raises issues of national policy, such as a major new airport or seaport or energy project, but on which no sufficient policy has been adopted by government.

1.4.6 Expertise An “environmental” court or tribunal implies a body, all or some of whose members are specialists in environmental issues, from whatever disciplinary perspective. It implies a body that is distinct from the normal courts, and whose purpose is to focus exclusively on environmental suits. It does not imply that its members must all be judges from a legal background. If it is too much of a challenge to professional hegemony to envisage that non-lawyers might be judges, then there are other designations available, such as commissioners, inspectors or assessors.

1.4.7 Access This issue lies at the heart of why environmental litigation is thought to be sufficiently different from other forms of legal dispute to warrant the establishment of a separate court or tribunal. To some extent it has to do with the lack of private rights in the unowned environment. The courts are accustomed to dealing with property disputes between landowners, although even here disputes of an environmental character have forced a re-examination of old rules regarding liability56. In the absence of private property, any private right to commence action is normally dependent upon proof of personal injury or disease caused by environmental conditions, such as asbestosis or irradiation. Such actions are notoriously difficult to bring, relying 56

See, e.g., Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 1 All ER 53; Hunter v Canary Wharf Ltd [1997] 2 All ER 476.

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as they often do upon epidemiological evidence as to causation, upon proof of actual damage, upon individual suit rather than class action and upon an adequately funded plaintiff against an often well-resourced defendant who may, indeed, be the State itself. Environmental protection is about broader societal values, and providing broad rights of access to a specialised court to be able to protect those values has become an important theme in contemporary thinking about environmental rights. Of course, where private rights are weak, State powers can substitute, up to a point. Discharges to the environment are now tightly regulated in most countries. But the common pattern is for the State to have a monopoly over the setting of standards and over their enforcement. Enforcement in the hands of under-resourced agencies is perceived as being slow and often ineffective. In the European Union, it is the Member States themselves that are at the heart of the enforcement problem. Transposition of environmental directives has been notoriously inadequate and uneven. Hence, the wish to extend private rights of suit as a means of breaking the monopoly power of the State as environmental regulator and enforcer, which found expression in the communication from the European Commission of October 199657.

1.4.8 Informality A theme closely related to that of access is that of informality, of devising procedures in which parties who lack funding or expertise can nonetheless participate effectively. This implies a move away from traditional judicial modes of approach based exclusively upon adversarial presentations and cross-examination, to styles in which the court itself takes a leading role in a more inquisitorial mode. Closely linked to this is the movement towards alternative dispute resolution (ADR), either as a substitute for court proceedings altogether, or as part of a suite of processes available to parties before the court.

1.4.9 Cost The wider participation that is sought by relaxing rules relating to access and to formality would still be inhibited by high costs. One feature of a specialist environmental court might be its ability to overcome the problems of high costs associated with normal civil litigation.

1.4.10 Innovation This is a central part of the vision that all its advocates have of an environmental court. This is not simply to be a conventional court, vested with a specialist jurisdiction, but a body capable of dealing with the different demands that environmental issues throw up; perhaps with a standing jurisdiction and a set of independent duties in relation to the environment that would allow it to act of its own volition and not have to await the commencement of proceedings by parties.

1.5 Conclusions The development of institutions and procedures for environmental disputes resolution in England and Wales has traditionally been through gradualism and incremental change. 57

COM(96)500, para 39: see above, p 11.

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The various proposals that have been advanced for an environmental court reflect a variety of different starting points—some reflecting that gradualism, others more radical. There are also different visions as to what it might achieve. There is no single model, though is valuable comparative experience from other jurisdictions to which we shall turn shortly. In its review of the options for the future, the Government will be acting within a developing framework of environmental law, including that emerging from the EU, from international conventions and from its own Human Rights legislation.

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ENVIRONMENTAL COURT PROJECT: FINAL REPORT

2 The general approach of the study 2.1 The stages of the research The research was conducted in four main stages: (1) an analysis, on the basis primarily of a literature review, of existing systems of Environmental Courts in other countries, together with any suggested systems which came to light in a review of the literature. The relevant aspects were to include jurisdiction, membership, procedures, administrative support, standing of third parties, provision of associated services such as alternative dispute resolution (ADR), cost, and relationship to other courts and tribunals in the system. Given the descriptive and technical character of much of the literature, and the lack of any keen comparative analysis in land-use systems, we determined, with the agreement of the Steering Group, to undertake this work by developing scenarios against which to demonstrate the approach of the different jurisdictions, and a set of criteria by which to evaluate their performance. These are outlined in this Chapter. (2) The conduct of in-depth studies of selected jurisdictions, chosen on the basis of the outline studies, where the environmental court concept had been adopted and was in operation. In the event, we focused this work on the specialist courts in New Zealand, New South Wales, South Australia and Queensland, where there appeared to be the opportunity to study the concept in an advanced forum operating in a common law context. (3) The conduct of a comparably in-depth evaluation of the present situation in England and Wales. (4) An evaluation of the applicability of the concept to the situation in England and Wales. After the submission of a draft version of the report in December 1998, we presented our conclusions to a special seminar held at the Department of Environment, Transport and the Regions in April 1999. The list of those who attended is at Appendix 1. We are grateful to all of them for their observations and suggestions.

2.2 The initial assumptions We made two initial assumptions in approaching the first phase of the project. (1) that to focus too narrowly at this stage on the experience of bodies bearing the title of “environmental courts” or something similar in other jurisdictions would be both to predefine the concept, and to overlook the extent to which the institutions of decision-making in environmental matters in other countries, including the United

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ENVIRONMENTAL COURT PROJECT: FINAL REPORT Kingdom, bore some of the same characteristics. Indeed, we found very few jurisdictions where such a specialist body exists and had we confined our Stage 1 study to them we would have failed to capture the qualities required for an adequate comparative study. We therefore sought to identify those bodies whose functions most closely resembled those bodies engaged in environmental dispute resolution in England and Wales, including the Planning Inspectorate and the courts in their environmental jurisdiction. For this reason the research is in some respects more wide ranging than envisaged by the terms of reference, and in some respects narrower. We initially took the view that we could explore a more rewarding line of inquiry if we were to identify some of the functions that we would expect to see assigned to an environmental court, and to ask where they were assigned, and how they were dealt with, in six key European jurisdictions1, and a further four Australasian models. This should, we thought, enable policy decisions in the United Kingdom to be informed not only by a comparison with jurisdictions where environmental courts exist, but also those where other forms of dispute resolution are employed. In practice, the exercise proved less rewarding than we had hoped, largely because of the complexity of the parallel arrangements in other the jurisdictions we examined. The results for the six European countries are summarised in Chapter 3. But the short answer was that there is limited experience with the concept of a specialist and integrated approach to environmental litigation except in Australia and New Zealand. Secondly, the literature contains several descriptive accounts of land-use and planning control systems in various jurisdictions. The majority of these are introductory, and contain sufficient detail only to allow a very general comparison of approaches. We have not replicates these descriptive approaches, but have focused instead on key issues of comparison.

(2) We needed to go further than the conventional literature in two ways: (a) by developing several scenarios to aid a basic understanding of how different types of environmental dispute were likely to be treated under each system; and (b) by identifying different criteria against which the different systems might be evaluated. As a preliminary exercise, we: 

attempted to understand how, in all the 11 systems outlined in this report (that is, including also England and Wales) each of the scenarios would be dealt with, on the basis of the available literature. Whilst this allowed no more than a tentative set of conclusions to emerge, it was sufficient for us to base our selection of jurisdictions for more detailed study



used both the scenarios and the evaluative criteria in their evaluation of the four jurisdictions that were selected for detailed study.

The literature that was available and accessible for most jurisdictions proved inadequate to allow a wholly satisfactory analysis of the case-scenarios, let alone any reliable 1

Denmark, Germany, Ireland, Netherlands, Spain and Sweden.

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evaluation in accordance with the criteria, but it did allow us to identify some general themes and trends, and to suggest the basis for the work that was to follow2.

2.3 The scenarios We developed, with the assistance of the Steering Group, a set of eight scenarios to allow us to determine the extent to which we can discern, at any stage of the process, an approach to decision making which resembles the qualities of an environmental court, whatever name is actually given to it. In some jurisdictions, notably in Australia and New Zealand, there are bodies with “environment” and “court” in their titles. In others, there is not any such named structure, but there are bodies, such as planning commissions and planning inspectors, conducting similar functions.

2.3.1 Scenario 1 A proposal to widen an existing highway between two towns each with a population of around 150,000, to convert it from an ordinary road into a three lane motorway in each direction. The highway crosses local authority boundaries and it has attracted very significant local opposition. Purpose: the point of this scenario was to learn how different jurisdictions would handle decision-making on a scheme of national importance which transcended local administrative boundaries. For European Community Member States the project would be subject to environmental assessment under Council Directive 85/337, which for some involves a parallel but separate process from obtaining permission under the land-use planning system. Hence, a scenario involving a project which required environmental assessment would help establish the extent of co-ordination between land-use and environmental controls. We were looking for an understanding of the forum in which citizens groups’ opposing arguments would be heard, and decisions made. We also wanted to understand how far the final decision would be a political decision by the Government of the day, and how far the product of disinterested application of established policy by an independent assessor (as by an Environment Court). We also wanted to determine the extent to which mediation and ADR had developed in such a context.

2.3.2 Scenario 2 A proposal to construct a new manufacturing facility on a green field site adjacent to an existing urban area. The manufacturing facility will generate emissions to the atmosphere and to surface waters. A local citizens group has been established for the purpose of opposing the application. Purpose: this scenario involved issues both of land-use and discharges into the environment, and was intended to test the extent to which the regulatory systems for 2

We are particularly grateful to the experts in those countries who have reviewed our draft accounts, though responsibility for any errors and omissions remains, of course, with us.

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each were integrated at what was likely to be a local level of administration. Under the New Zealand system of resource management, for example, the scheme would need only a single permit covering all aspects of the development, and there would be extensive rights of public participation and challenge. In most US jurisdictions, the citizens’ opposition would be expressed primarily through a lawsuit in the general courts, though mediation might be pursued to head it off.

2.3.3 Scenario 3 A manufacturing plant which was constructed in the 1960s in an otherwise urban area is apparently breaching the terms of a discharge consent. Local residents are fearful of the potential implications of this for their health, and wish to take proceedings. Purpose: this scenario has no land-use planning implications, unless matters were sufficiently drastic for land-use consent for the plant to be withdrawn. The critical issue was the enforcement of environmental controls. Is there a State monopoly on enforcement, under which only the regulatory agencies can take action? Or is there a power, as with a citizens’ suit under US Federal environmental law, or by application to the Land and Environment Court in New South Wales, for private citizens to commence enforcement proceedings?

2.3.4 Scenario 4 An adult male claims to have suffered health damage, including damage to his lungs, as a result of inhaling smoke-borne particles emitted from a manufacturing facility nearby. He wishes to commence proceedings against the owners of the plant. Purpose: we felt that we needed a toxic torts scenario to understand where within the administrative or court structure actions such as this would be commenced, and how they would be dealt with. For example:  will the claim proceed under conventional civil jurisdiction rules?  is the forum a specialised environmental forum or a general forum for civil law disputes?  what is the burden of proof?  will there be a jury trial, or proceedings before a judge alone?  are there any special plaintiff rules, such as the special causation presumptions under the German Environmental Liability Act of 1990?

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2.3.5 Scenario 5 A housebuilding company proposes to build 100 new dwellings on a green field site that is presently being used for agricultural purposes. Purpose: the principal issue here was the mechanism for land allocation, and for granting permits. Some jurisdictions allow for incremental extensions to urban areas, either through formal revisions to town plans or ad hoc “departure” applications, whilst others, like the British system, have a more flexible approach. It was not our purpose to explore the policy framework of such decisions, such as the balance between green fields and the reuse of brownfield sites; nor to inquire into associated questions of infrastructure funding. The issue was how disputes were handled, and the style of adjudication or mediation that takes place.

2.3.6 Scenario 6 A householder wishes to construct a single domestic garage for personal use adjacent to his dwellinghouse Purpose: this is a very basic scenario. In some jurisdictions the matter is dealt with under a scheme which sets parameters within which no further permit will be required. This may be a local zoning scheme, as in most US jurisdictions; or a national order, such the Town and Country Planning (General Permitted Development) Order 19953 in England and Wales. In others, it may be regarded as irrelevant to land-use planning, but there may be instead a requirement under private civil law to consult neighbours or obtain their consent.

2.3.7 Scenario 7 A municipality has prepared a plan for its area which allows for the growth of the urban area. There are objections to the plan. Purpose: this scenario captures the process of making general land-use policies and plans, and approval procedures. In some jurisdictions, the content of the equivalent of a local plan (in England and Wales) is closely governed by a higher-level plan, perhaps prepared on a regional or provincial basis; in some jurisdictions, plans are prepared only for town expansion, not on an area-wide basis. There is also a spectrum of dispute resolution mechanisms. In some jurisdictions the process is primarily political, and final decisions are taken by political institutions (such as a municipal council) on the basis of consultation and representations; in others, there will be a quasi-judicial hearing. How are these proceedings conducted? who may participate? does the board or other agency conducting the hearing also have responsibility for determining subsequent planning appeals? In other jurisdictions, the lower level plan must by law comply with the upperlevel plan, and litigation is the only means of resolving the issue in disputed cases. 3

SI 1995 No 418.

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2.3.8 Scenario 8 A proposal to construct a major new international airport Purpose: this scenario most resembles the first, but with the important difference that the externalities of the development are likely to be more widespread, that a Government is likely to be inclined to favour the development in principle but anxious to confer on an independent decision-maker the decision as to locational suitability, and that the complexity of the competing issues is likely to be far greater.

2.4 The evaluative criteria The following is a list of questions which reflect the priorities determined by the Steering Group. They arise from the issues which appear to have been important in the debate as to whether England and Wales should have a specialist environmental court. It was intended that these should be developed as a checklist against which to assess environmental dispute resolution in other selected jurisdictions as a means of identifying the four comparators. Unsurprisingly, it has proved difficult to assess the 11 jurisdictions examined in this paper against these criteria on the basis of the desk study and literature review. The literature tends to be largely descriptive of the laws and institutions, and to provide little by way of insight into their practical operation. However, the tables at Appendices 2 and 3 provide an introductory comparison.

2.4.1 Procedural rationalisation The extent to which the jurisdiction avoids confusion and overlap of procedures, for example with statutory appeals and judicial review. Comment: the example given is of relatively narrow and technical importance. The central question is the extent to which an environmental court enables the bringing together and assimilation of such procedures and appeals. It is, however, distinct from substantive rationalisation, below.

2.4.2 Substantive integration The extent to which environmental regulation, including land-use, is reviewed / supervised through a common process. Comment: this question is focused wholly on the process of review beyond that of the immediate decision-maker, such as the local authority or Environmental Protection

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Agency. We were looking for bodies whose functions include merits appeals and appeals and challenges on points of law.

2.4.3 Speed and delay. How long does it take to get a final decision? What proportion of decisions result in appeals, and what success rate obtains at the various levels? What are the requirements for leave, and how effective are those controls? Comment: we felt it likely that we would be able to assemble relatively reliable data on these issues, either from published or official sources, or from expert estimates based on the various scenarios. This did not prove possible in all cases.

2.4.4 Incorporating expertise Is the system able to deal satisfactorily with the increasing complexity of environmental issues? Does it demonstrate an ability, even at the lower levels, to cope with technical points, and does the capacity exist for using non-legal expertise when the need arises? What are the qualifications and professional experience of the members of the tribunal/court? What numbers are involved, and to what extent are specialist assessors used? How are technical issues handled? What standards apply to the admission of expert evidence? How are issues of policy handled? Comment: we felt that there were issues here both of fact and opinion, which required full case-study treatment.

2.4.5 Encouraging informality How technical and legalistic is the system? Can it incorporate informal alternatives to litigation where appropriate? This is ever more relevant in light of the Woolf Report’s emphasis on encouraging Alternative Dispute Resolution as an important element in reforming the civil process. Can the court adopt an inquisitorial role or even limit pleadings in the interests of speed and clarity? Comment: there are two distinct issues here: the proceedings of the court/tribunal itself, and the potential for ADR, whether as part of those proceedings, or wholly alternative to them.

2.4.6 Access to justice

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Is there a general public right to commence proceedings? If not, what interest is required? Can associations bring proceedings to enforce environmental laws? Comment: this has been a controversial area in recent years in relation to the planning system in England and Wales, where there has been marked variation between different cases in their approach to the question of locus standi. We felt that analysis would also need to distinguish between different types of action (eg enforcement, judicial review, environmental liability). But it has other dimensions as well. Access to justice requires more than simply allowing people to move the court. It includes enabling participation, most importantly by lifting the barriers such as cost and formality which otherwise discourage access.

2.4.7 Cost of justice How much might the parties be expected to pay? Do costs follow the event? Are there special rules for public interest litigation? Is there legal aid? What are the rules for payment of tribunal/court fees as opposed to costs? Are parties obliged to have legal representation, and what is the position in practice? Comment: assessment of formal costs may be possible from official data, but private costs may prove difficult to obtain, because of confidentiality issues. Nonetheless, we felt it might prove possible to draw broad conclusions that would be helpful.

2.4.8 Cost of the system To include buildings and staff. What are the average costs per case? Comment: this question is closely related to No. 7 above, relating to the costs of justice to the parties, but has a wider application because administrative costs are not necessarily passed back to customers, and parties’ individual costs are rarely captured in official statistics.

2.4.9 Special rules of evidence and procedure? What are the rules as to burden of proof? Does the burden shift under certain circumstances? Is all evidence admitted? Does the body have the jurisdiction to consider factual evidence as opposed to points of law? Does a doctrine of precedent exist in the court/tribunal? To what extent is it under a duty to give reasons for its decisions, and what effect does this have on the decision making process?

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Comment: this is primarily a set of factual issues to which we felt that answers should be readily available.

2.4.10 Remedies Can the relevant court provide the full range of remedies required, such as injunctions and associated interim orders? Comment: the question is related primarily if not exclusively to enforcement, and is dependent on the functions exercisable by the court/tribunal in the first place.

2.4.11 Extent of jurisdiction Is there both civil and criminal jurisdiction? Are environmental wrongs usually characterised in the jurisdiction as primarily civil or criminal matters? Is that treatment appropriate? Comment: the first issue is factual; the second more evaluative. We felt it would be best approached by asking about the balance of criminal/civil enforcement matters coming before the court/tribunal.

2.4.12 Original jurisdiction. Does the court or body have any original jurisdiction? Comment: it was likely the answer to this would depend upon whether the body concerned was part of a superior court which itself had an original jurisdiction, or was separately established by statute and with only the jurisdiction that was statutorily conferred.

2.4.13 Level of jurisdiction. How does the jurisdiction deal with challenges to the merits of environmental decision making, on the one hand, and challenges to the legality of environmental decision making on the other hand? How have specialist, integrated systems dealt with (or incorporated) the equivalent of the present functions of the Planning Inspectorate? What is the policy guidance role of the tribunal/court? What powers do ministers have, in theory, to either issue such guidance or intervene ( e.g. call-in) in this context, and how often in practice are these powers actually exercised? Comment: we determined to address these issues at the level above that of the primary decision-maker, such as a local authority or administrative agency, though with a discussion of the relationship between the local authority and the appeals body. On merits, the critical question was the role of policy and the power of the policy maker to ensure compliance or observance.

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2.4.14 Definition of jurisdiction and the creation of environmental law How is the court’s environmental law jurisdiction defined? Does the specialist court, if there is one, deal with a defined list of statutes, or does it also deal with common law type actions (e.g. private nuisance, etc). How is primary and secondary legislation enacted? What is the relationship between it and case law? Comment: We felt that the second limb went beyond the terms of reference for the project, save as a background issue for understanding the general operational context of the court/tribunal.

2.4.15 The treatment of central and local government Is there special treatment for development by Government, including development on government land? In general, how are central, regional and municipal bodies (and other public sector agencies) treated by the system? Comment: we felt that this issue warranted brief discussion only, in the context of the effect on the operations of the court/tribunal.

2.4.16 The impact of international obligations Including compatibility with international and regional Human Rights obligations. Comment: we felt that there was potentially an important role for a court or tribunal as a body independent of Government in overseeing international obligations and protecting the individual rights to which they gave rise.

2.4.17 Guardianship of the environment Does the court have any general power to act as a guardian of the environment in Lord Woolf’s terms? Comment: we did not expect this to be a widespread phenomenon, and so it proved.

2.4.18 Balance in the system What balance obtains between the public interest, private property rights and public participation at different levels, as far as these concepts are measurable? Comment: we realised that we could do little more under this head than to venture general impressions and conclusions garnered from our desk studies and from interviews

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with the key participants in the systems concerned. The actual balance between these institutions in practice is variable, highly complex and defies easy evaluation.

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3 Environmental and land-use decision making in six jurisdictions 3.1 Introduction Effective comparative analysis of the way matters are handled in different legal systems is fraught with difficulty. Purely descriptive accounts that are derived from textual analysis of laws or policies, or from official descriptions, tend to disclose little of the true dynamics of the system, or of the implicit understandings that parties have of it and how that in turn affects their approach. Moreover, it tells us little of the bargaining that takes place under the shadow of the law. In order to get a better understanding of how land-use and environmental disputes are handled elsewhere, we first undertook a deskstudy of ten jurisdictions, on the basis of the eight scenarios outlined above. We reviewed the general conditions under which disputes were resolved, and we then considered how the issues raised by each of the scenarios would be addressed in those jurisdictions in order to sharpen our understanding of the decision-making procedures. In four of these (New Zealand, New South Wales, Queensland, South Australia), together with England and Wales, we then conducted in-depth research. The other six jurisdictions were all European countries: Denmark, Germany, Ireland, the Netherlands, Spain and Sweden. This selection presented us with a convenient balance between the different regions of Europe (Scandinavian, central and southern), but also, and more importantly, between different constitutional systems and different legal systems. Four of them are unitary states; two (Germany and Spain) have federal systems. All save Ireland, which has a common law system, have civilian legal systems, but with quite significant variations between them. For some (eg Netherlands and Spain), the civilian tradition is reflected in the assignment of all administrative merits appeals to a Council of State. In others, appeals go to the general courts. In some, particularly the Scandinavian states, regulatory power is strongly decentralised within unitary states, principally to regional and local government. Moreover, the jurisdiction that might be conferred on an environmental court in England and Wales is handled through a variety of different bodies in the countries surveyed. In short: 

Sweden has just reformed its system and introduced regional environmental courts and a national environmental court of appeal



Denmark has a model of an environmental court in its Environmental Appeals Board;

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Ireland has a specialist planning appeals tribunal, An Bord Pleanála, but with only a limited environmental jurisdiction



Germany, Spain and the Netherlands, with civilian legal traditions, provide recourse through their administrative courts structures, injecting environmental expertise as and when it is required.

It is a dynamic picture. Federal-regional divisions of competence tend to create real tensions between institutions of territorial government, as in Spain where the bulk of the new federal planning legislation was struck down in 1996 by the Supreme Court for trespassing upon the competences of the autonomous regions. In some, radical reforms have recently been introduced (eg Sweden); in others, they are planned (eg Germany).

3.2 Sweden 3.2.1 General principles Sweden has a long history of environmental concern, and has had some of the most administratively complex legislation of any of the countries examined in this study. However, its systems are in the course of radical change. Its membership of the EU from January 1995 made it necessary to harmonise its environmental legislation, and a new Environmental Code was adopted in June 1998. It makes several significant changes, including the introduction of a new system of environmental courts. The legislation came into force at the beginning of 1999. It is a substantial piece of legislation, running to 33 chapters and nearly 500 sections of primary legislation. More detailed provisions are provided in ordinances made by the Government.

3.2.2 The old legislation The new Code amalgamated the following principal legislation: Environmental Protection Act 1969: this Act provided for the regulation of all activities that could cause pollution of land or water, including agriculture and forestry, closed landfills and major industrial establishments. It imposed an obligation to apply for permits for these activities, and classified them as “A” and “B” activities, where A were those requiring permits issued by the National Licensing Board and B those regulated by the county board (for some less significant activities there was a duty to give prior notice to the local authority (“U” activities). For several polluting activities there was no duty to apply for permits or to notify any authority, but the law was still applicable. In practise this meant that the local authority could issue a notice to the operator or the landowner requiring him to follow the standards of the EPA. The same system applied for the “U-activities”. Where a permit was in place, it could only be varied by going through a procedure similar to that involved in the grant of the permit in the first place. A company or person who intended to carry out “A” activities must apply to the National Licensing Board for Environmental Protection for a permit. This was not a court but a central authority in which negotiations took place for each case before a decision was made. It consisted of representatives from both industry and other interests,

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plus lawyers and technical experts. The decision of the Licensing Board could be appealed to the Government and—if it concerned only a question of law—to the Supreme Administrative Court. The Board’s decision might be combined with a statement of an administrative fine (decisions without fines sometimes are regarded only as general advice, since the criminal sanctions often are non-existent). If the operator did not comply with the decision, the fine could be imposed on him after application to the county administrative court. The trial in court in fine-cases would deal formally only with the question of whether the fine was legally determined. It was not supposed to be a full trial. The National Licensing Board operated in a manner similar to a court. There was provision for a hearing, with a full opportunity for public participation. It was seen as an expression of the public conscience, allowing direct input into the granting of permits. It grew out of the water courts and it earned a reputation as an unbiased arbiter. It had been likened to an environmental court, although technically it was not. It had four members for the hearing stage: one chairperson, one senior engineer, a Board member and an industry representative. The permit process could take up to a year. The Board also had an advisory role, as its expertise often led to the alteration of the application during the process. Water Act: this Act regulated building and other activities within water catchment areas. It also contained rules about the payment of compensation to those who were affected. The implementation of the Water Act was supervised by the Water Court. There were six of these. Their decisions could be appealed to the Court of Appeal for Water Cases. Their functions are now absorbed into the new Environmental Courts. Health Protection Act: this Act dealt with sanitation problems. Nature Conservation Act: this prescribes the designation and protection of nature reserves and national parks. The owner of the property affected by such designations may claim compensation. Implementation of the Act is almost exclusively a matter for the state authorities, principally the county board and the Forestry Agency. Environmental Damage Act: this measure allows claims to be made for damages for environmental harm caused by certain activities. Financial compensation may be awarded for personal injuries or pure financial loss resulting from hazardous activities. Liability under the Act is strict. Claims under this Act and the Nature Protection Act were formerly made to the Property Court. There were 24 Property Courts, which were divisions of the magistrates’ courts. These were not lay courts, however. Swedish magistrates’ courts are presided over by professional judges. Cases could be appealed to the Court of Appeals, of which there are six in the country, and further to the Supreme Court if the case concerned a matter of principle. The property courts were the fora for the majority of actions involving land-use and environmental law, although the criminal courts also have a role.

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Chemical Products Act: this legislation regulates the handling of certain chemical products, and also articles which contains such products, which have the capacity to be harmful to health or the environment. The legislation prescribes requirements about substitution and other precautionary measures, the duty of knowledge, investigations, information to the consumers and the relevant authorities, notification and permits. Although there are some requirements to obtain consent of an authority before introducing a chemical product to the market, the main line is that the implementation of the law is up to the producers. The supervisory authorities, the municipalities and the county boards, through parallel procedures, can intervene in concrete situations by issuing notices to those handling such products. Other legislation incorporated into the Code included the Flora and Fauna (Measures Relating to Protected Species) Act; the Agricultural Land management Act; the Genetically Modified Organisms Act; the Biological Pesticides (Advanced testing) Act; the Fuels (Sulphur Content) Act; the Public Cleansing Act and the Dumping of Waste in Water (Prohibition) Act.

3.2.3 Town planning provisions The Town and Country Planning Act remains unaffected by the introduction of the Environmental Code. It is still the principal land-use planning measure, and it is directed to the planning of land and water resources, aiming at sustainable development and a good environment for present and future generations. The controls are a matter in the first instance for the municipal authorities, and they relate to development in the narrow sense of construction of buildings and activities related to such development1. Municipal authorities are required to produce a structural plan showing proposals for the future development of the community, including such matters as use of water, roads, and nature protection areas.. It has no binding effect. Each municipality is obliged to have such a plan in place, and they are generally prepared on a municipal basis, as the municipality retains the main functions in this area, although counties may also draw up proposals on a similar basis. The next stage is a detailed plan or “building plan” which is binding in the sense of controlling development, but only in a very small area. Such a plan is required when any extensive change in land use is proposed, and only very minor deviations are allowed from it. These plans are mostly used for planning the development of new areas of housing, industry and so forth. Decisions on building plans are taken by the municipal council and appeal is made to the county board and so on to the Government. The Act imposes a general duty to apply for a building-permit for development, which extends both to cities and the countryside. There are some exceptions, for instance for agricultural buildings. The regime is otherwise extensive and covers, apart from buildings, also amusement parks and sport arenas, ski-slopes, camping areas, harbours, shooting-ranges, open-air baths, arenas for motoring, golf courses, tunnels, rock shelters 1

See generally Arne Fredland (ed) Swedish Planning in Times of Transition Swedish Society for Town and Country Planning (1991); Hans Broome and Jaak Maandie, “Sweden”, in Grant, M (ed), Urban and Regional Planning Legislation International Planning and Housing Federation (1992), p. 187.

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and storage areas, permanent tanks, aerial masts and towers, wind power stations, walls and fences, out-door parking-lots and cemeteries. A permit is also required for alterations to such buildings. Decisions on building-permits are appealed to the county board. Further challenge beyond there depends on the character of the dispute. If the decision relates to the land’s general suitability for the development (planning considerations), appeal lies to the Government. If not, for example because those issues are already determined by a building plan, the appeal instead goes through the general administrative courts. The municipality’s decision on building plans can also be contested by the county board ex officio, that is without any appeal or application to it. Before 1987 all building plans had to be approved by the county board. Today, it can intervene at its own initiative, but only if a building plan infringes specific state interests, such as health and safety, co-ordination between different local communities and “areas of national interest” designated under the Natural Resources Act in respect of nature (including reserves for reindeer), communication, industry, energy production, minerals, tourism, and other heads. This review, under Chapter 12 of the Town and Country Planning Act is neither an appeal nor a full trial and the county board can only quash the plan. Local authorities are required to employ the resource management principles in the National Resources Act, both in adopting plans and in determining applications for permits under other environmental laws. The principles provide guidance in interpreting approximately 12 special enactments. There is some similarity in terms of overall approach with the New Zealand Resource Management Act 1991. But the National Resources Act goes further in regulating some thirty seven specific types of installation having a potentially adverse effect on the environment, and providing the local authorities with a right of veto over the location of such plants in their area. Such choice of location is also subject to government approval.

3.2.4 Administrative system 3.2.4.1 Local and regional government There are 288 municipalities in Sweden, and they have a significant degree of independence from the State, under the doctrine of the municipalities’ right of selfdetermination2. These municipal councils are locally elected and are the local government for their area. There are also 21 county boards which are in effect the state representation on a regional basis. They exercise legislative and supervisory functions on behalf of the state, concerning matters such as development, health and environment. Representatives on the board are indirectly elected by the municipalities. A municipality may only act within the powers given to it by law, and its powers are limited mostly to making 2

Lars Stromberg and Tone Engen, “Sweden”, in Albaek, E and others (eds), Nordic Local Government Association of Finnish Local Authorities. 1996; p 235.

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decisions in concrete situations. Municipalities have only limited legislative powers, such as to make standards or rules, in matters such as traffic, health and public order (polizei-recht). Nonetheless, they have wide ranging service delivery responsibilities. In relation to the environment, the relationship between county boards and municipalities takes different forms. The starting point is that the county board has a supervisory and co-ordinating role and that decisions by the municipalities may be appealed to the boards, with a full review of the merits. In some areas (health and chemicals) the municipality and the county board have parallel functions, and the county board may intervene when the municipality fails to fulfil its functions. Even in contexts where the municipalities are almost lone players, such as in relation to planning and development under the Town and Country Planning Act, the county board may, as we have seen, intervene when certain state interests are at stake. 3.2.4.2 Judicial system The court system is divided in two parts. First, the general courts, which deal with both civil and criminal matters. Here the first instance is the district (city) court3, of which there are 96 throughout the country. The next tier is the six courts of appeal, from which appeal lies to the Supreme Court in Stockholm. One district court in every county has specific technical competence in real estate and land-use and acts as a land court4 in a specific composition (appeals within the ordinary system). Six of the district courts also formerly had specific technical competence in relation to water and acted as water courts for each water-area in Sweden. Appeals from their rulings lay to the Court of Appeal in Water Cases (the Court of Appeal in Stockholm in a specially constituted court), and from there to the Supreme Court. Secondly, there are the general administrative courts, which follow a similar configuration from the county administrative courts (24), administrative courts of appeal (4) and the Supreme Administrative Court. Administrative decisions by municipalities are often appealed to the county board. Thereafter the appeal may be either through the administration, or the administrative court route. In the former case, the matter often goes first to a central authority and from there to the Government (the department involved). Under the old system, it might alternatively, as for example with appeals under the Environment Protection Act, go first to a specific authority such as the National Licensing Board, and then sometimes to the Government. If it went through the administrative court route, it would go first to the county administrative court or the administrative court of appeal. If a decision is made by an authority it could also be judicially reviewed after appeal made to the county administrative courts or the Supreme administrative court. However, the system was in practice even more complex than this description might suggest. Take, for example, environmental decisions. When a municipality issued a notice it was often, as we have seen, combined with administrative fines. The decision 3

The names of the courts in English are the official names used by the Swedish Central Court Authority. The statistics are as at January 1, 1998. 4 “Land court” is the English equivalent used by the Central Court Authority, but the official Swedish NEPA translation of the Environmental Protection Act refers instead to “Property Court”.

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might be appealed to the county board and then to the National Licensing Board. If the operator did not comply with the notice, the fines could be imposed on him by the county administrative court after application from the authority. Permits for environmental hazardous activities were issued by the county board (appeal to the National Licensing Board and the Government) or the National Licensing Board (appeal to the Government), depending upon the size of the establishment. Permits for undertakings (establishments) in water were given by the water courts. When a private party wanted to get an injunction to stop an environmental hazardous activity, this was made by summons to the land court. The same procedure applied in most cases when a plaintiff claimed damages from a responsible party, but when the plaintiff had no interest in land it went to the ordinary district court. Landowners’ actions for compensation under the Nature Conservation Act went to the land court. Criminal cases concerning environmental liability were dealt with within the general courts.

3.2.5 Current reforms 3.2.5.1 Background to the reforms The complexity of the old system led to an extensive programme of review for almost a decade. One aspect was the setting up in 1996 of a Parliamentary Committee, chaired by the President of one of the six Court of Appeals, Carl-Axel Petri, which in 1997 published a report containing proposals for a reformed judicial approach to environmental issues, with stronger powers. The proposal was that the National Licensing Board and the six Water Courts and the 24 Land Courts be abolished and replaced by six Environmental Courts. Their decisions would be appealable to a new Court of Appeal for Environmental Cases, and further to the Supreme Court if the case were legally interesting. The proposal was then converted into a draft law that was then reviewed by a “Lagrådet”, i.e. three supreme court judges forming an advisory committee. The proposals were included in a new Environmental Code which was adopted by the legislature in June 1998, and which came into effect on January 1, 1999. It contains no fewer than 33 chapters and 500 sections, and consolidates and reforms 15 existing environmental statutes. Relevant extracts from the new Code are reproduced below as an Annex to this section5. 3.2.5.2 Decision making under the new Environmental Code Under the new provisions, there is a simplified administrative and judicial structure for environmental protection. The decision-making hierarchy is:    

municipality county board (the environmental trial authority) Environmental Court Environmental Court of Appeal (Court of Appeal in Stockholm in a special composition)  Supreme Court. 5

See below, para 3.2.7.

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Some decisions, such as on permits for major activities, are still taken by the Government and are therefore still judicially reviewable by the Supreme Administrative Court. Notices issued by the municipal authorities are now appealable to the county board, and from there to the Environmental Court, with no further appeal. In other cases, there is a further right to appeal, but with leave, to the Environmental Court of Appeal and the Supreme Court. Permits for environmentally hazardous activities are now issued by the county boards and the Environmental Courts, with water permits reserved to the Environmental Court. Actions for injunctions and damages are made to the Environmental Courts, and they deal also with applications for imposing administrative fines. The only aspect of environmental regulation remaining outside the new system is criminal cases, following the Swedish concept that prosecution is a state monopoly exercisable only by State attorneys. 3.2.5.3 The environmental courts An important component of the reforms is the introduction of Environmental Courts. These replace the National Licensing Board for Environmental Protection and the Water Courts. They are created on a regional basis. The Code provides that the Government will designate certain district courts to be Environmental Courts. They have both a first instance jurisdiction and an appellate jurisdiction. At first instance, an Environmental Court deals with applications for permits for environmentally hazardous activities, and for water undertakings. The Courts also have a first instance civil jurisdiction in relation to environmental liability compensation claims. In its appellate jurisdiction, the Court reviews decisions taken by the county administrative boards and other Government agencies under the Environmental Code, except in the exceptional cases in which the right of appeal lies instead to the Government. The Court has a chairman who must be a judge, a technical environmental adviser, and two expert lay-judges drawn respectively from the authority and the industry sides. It is anticipated that matters will normally be disposed of by hearing6, and judgements must be issued within two months of the conclusion of the main hearing. Judgements or decisions may be appealed to the Environmental Court of Appeal, though leave is required for cases which did not commence in the Environmental Court. The Environmental Court of Appeal’s proceedings are expected to be conducted primarily by way of written submissions, to a greater extent than in the Environmental Court. Cases which started as first instance matters in the Environmental Court are further appealable, with leave, to the Supreme Court. Those that started with a municipality or administrative authority are not appealable beyond the Environmental Court of Appeals.

6

The Environmental Code. A summary of the Government Bill Stockholm. Regeringskansliet, Ministry of the Environment (1998).

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The Environmental Court has power to award costs, but it is closely circumscribed. In application cases concerning water undertakings, the applicant is required to pay not only his own costs but also those of the opposing parties; and a similar rule prevails in appeal cases concerning water undertakings, though the opposing party’s costs are limited to those occasioned by the appeal. Environmental organisations are not entitled to reimbursement for their costs; nor are they liable to pay costs.

3.2.6 Sweden: the scenarios Scenario 1: the highway proposal In developing or upgrading a highway, the standards are set down in the Environmental Protection Act (“EPA”). However, no specific permit under the Act issues for such a project. Instead an overall “project plan” is required, which will apply EPA standards. The principal legislation is the Roads Act 1971, which applies to public roads under state management and is administered by the National Road Administration, which also deals with construction issues in consultation with the county boards. The project plan is decided by the National Road Administration. A land acquisition plan must be drawn up, and such a proposal would also require an environmental impact statement, to consider the overall effect on the environment of the proposed highway, and recommendations for minimising these effects. Those who are affected by a project plan can appeal. This is by way of full review. The relevant county boards and the NEPA also have rights of appeal in relation to their respective areas of concern. This approach has been the subject of a great deal of criticism: on the grounds, for example, that it is the developing department (Department of Communications) which also decides on the appeals; that permits for roads are outside the ordinary system of permits for environmental hazardous activities; that appeals against project plans are useless because the opportunity comes too late in the decision-procedure, and more. Building a road does not require a building plan, but cannot on the other hand be made in contradiction to such a plan.

Scenario 2: manufacturing facility on greenfield site The developer in this scenario will require a building permit under the procedures outlined above, and also a permit under the EPA. The Ordinance under this Act specifies three different categories of activity, according to their potential danger. He will be required to consult with local and central authorities, and the county boards will indicate those other parties to be notified prior to application. The rules in the EPA are quite general, although the examination is thorough. The permit authority may also make use of the guidelines issued by the National Environmental Protection Board, the central regulation and advisory authority. However these are not binding and the NEPA may simply issue a statement on the case to the permit authority. To a large extent the enterprise is expected to regulate itself, and may only be subject to spot checks on this monitoring function. It must submit a special report on its

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performance to the consent authority each year. The Swedish approach is unique in the amount of flexibility accorded to authorities to decide appropriate levels for permits in individual cases, in contrast to the approach of setting rigid national standards from which no deviation is allowed. Scenario 3: breach of discharge consent If permit conditions are beached, the regulatory authority may serve an administrative order on the enterprise to remedy the fault. A permit review is another alternative, and certain statutory circumstances trigger such a review. However, this procedure is seldom used, perhaps only once a year. There also the usual supplementary powers, such as rights of inspection of the facility, access to otherwise confidential information and power to impose financial penalties. These are general powers and not confined to breach of conditions. A private individual affected by an activity has in general the right to complain to the Environmental Court in order to prohibit the activity or to impose further precautionary measures on it7. The capacity for private parties to obtain damages is discussed below. A range of criminal penalties is also available within the environmental legislation, at the exclusive prerogative of the authorities. These refer mainly to breach of permit conditions or the initial failure to seek the correct permit. A range of fines is available, as well as the possibility of imprisonment. The Penal Code criminalises a number of actions involving environmental risk, but the 1998 Environment Code maintains the separation of adjudication in criminal matters. Sweden has long been to the fore in securing the availability of environmental information to citizens, and there is a very broad right of access to official documents. This right of access to information is enforceable through the general administrative courts if necessary, and the Ombudsman (Justitieombudsmannen) has a supervisory role in relation to this function. Scenario 4: toxic tort The most likely route for any action is through the environmental courts. The Environmental Damage Act 1986 provides private individuals with the opportunity to bring their own actions for financial or property loss, or personal injury suffered, due to environmentally hazardous activities. The court may award damages regardless of whether the operation has a permit, and the test is one of strict liability. A causal connection must first be established, on the basis of predominant probability, and the access to information regime mentioned above is useful in providing plaintiffs with necessary data, especially from self-monitoring and reporting. There is an insurance scheme under the 1986 Act which operates by establishing a fund whose contributors are the operators of environmentally hazardous activities. The annual amount/premium payable for this environmental damage insurance is linked to the nature of the activity. It aims to cover cases where the responsible party cannot be found or is insolvent, or where the right to sue is barred by time limitation. 7

Environment Protection Act, ss. 34 and 36.

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ENVIRONMENTAL COURT PROJECT: FINAL REPORT

Scenario 5: 100 new dwellings on greenfield site There is a duty to make a building plan when a development involves: (a) a new coherent settlement; or (b) individual buildings with significant impact on the surroundings; or (c) changes in settlements that are needed to be done at the same time8. A proposal for 100 new dwellings would clearly trigger such a duty. Issuing such a plan is a process that requires consultation with the public and different authorities, a public exhibition and public examination, and finally a decision by the municipal council. The county board will also be involved and will issue a statement of representations. This statement will indicate whether the board is considering intervening under Chapter 12 of the Act. A further concern here could be the Nature Conservancy Act 1964, which deals mainly with the protection of natural objects and plant and animal species. Although it is the concern of both municipal and national authorities, responsibility under this legislation is generally assumed by the county boards. The planning legislation is stronger in its protection than the nature protection legislation, and the need to protect nature reserves can be taken into account when issuing permits for potentially damaging activities such as building construction, land drainage, quarrying and road building. Scenario 6: the domestic garage A building permit is required for, inter alia, the erection of new buildings, for alterations and for change of use. In areas where a building plan is in force, permits may be required in order to change the colour of a house and to make other domestic alterations. Some minor measures are normally exempted from the general scheme, e.g. garages and outhousing provided they are less than 10 sq. metres and at least 4.5 m from the boundary. But the detailed local plan may specify to the contrary. Scenario 7: objections to local plan It is the duty of the municipality to consult the county board and other municipalities affected when it proposes to alter a structural plan, but they are in practice very rarely altered because of their status as non-binding statements of objectives. The process for building plans is more detailed. There is, as we have seen, a requirement for public consultation. Any objectors to the plan must furnish such an objection in writing. Any amendments by the municipal authority may require repeating the consultation process before the authority adopts the plan. It must then be forwarded to the county board and to all those who have tendered written objections or who may be adversely affected by any alterations in the provisions of the plan. As outlined above, the contents of a plan may be contested by appeal to the county board, who can review the municipal decision if it fails to meet the national interest or certain other public interest criteria set out in the legislation. Their decision in turn may be appealed to the government. 8

Town and Country Planning Act, Chapter 5, sec 1.

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Scenario 8: proposed international airport Construction of this facility will require three permits: a permit for the purposes of aviation law; a building plan for the project under planning law; and a permit under the Environment Protection Act as an “A” activity (the application for which must include an environmental impact assessment). Although suitability of the facility for a particular location is intended to be primarily a matter for the municipality, the State may intervene, under the National Resources Act, and assert a national interest, but at the risk of triggering the municipality’s right of veto.

3.2.7 Sweden: extracts from the 1998 Environmental Code9 Chapter 16 Section 1 - The Government, county boards and other administrative authorities, the environmental courts, the Environmental Court of Appeal and the Supreme Court shall have jurisdiction in cases and matters according to this Code or regulations issued in accordance with this Code. However, as regards cases relating to punishment (criminal cases), the general provisions relating to criminal cases will apply. Detailed provisions concerning which cases and matters should be examined by any of the named bodies will be found in Chapter 17, 18, 19, 20 and 23. The authority which has issued the permit for an activity decides about the withdrawal of the same permit. The permit may be issued for a limited period. Section 12 - Those judgements and decisions which can be appealed may be appealed by: 1.

anyone who is directly concerned with the judgement or decision;

2.

any local labour organisation which organises labourers in an activity which is the subject of the judgement or decision, as far as the judgement or the decision concerns issues of permit for dangerous activities;

3.

a central labour organisation as defined in the 1976 law on co-determination, a similar organisation for employers and a society of consumers, provided that the decision is adopted by a county board or a central administrative authority, and it does not concern a specific case.

Section 13 - Those judgements and decisions which can be appealed, may be appealed by nonprofit organisations which under their constitutions have the objective of looking after nature protection interests and environmental protection interests, as long as the judgements or decisions relate to any permit, approval or dispensation as defined by this Code. In order to be able to appeal judgements or decisions, an organisation shall have been active in Sweden for at least three years and shall have at least 2000 members. 9

This is not an official translation, and none was to hand at the time of going to press. We are grateful to Professor Said Mahmoudi, of the Faculty of Law at the University of Stockholm, for this unofficial translation.

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ENVIRONMENTAL COURT PROJECT: FINAL REPORT Non-profit organisations may not appeal decisions which concern the armed forces, fortification organisation, armed forces production installations and armed forces communications installations.

Chapter 17 Section 1 – The granting of permits for the following activities shall be the responsibility of the Government: 1. Iron and steel factories, metal factories. 2. pulp and paper factories. 3. oil refineries and refineries for heavy petrochemical products. 4. factories for the production of basic chemicals and fertilisers. 5. cement factories. 6. nuclear technology activities. 7. incineration facilities with a capacity of at least 200 megawatt. 8. group stations for wind power with at least three aggregates producing at least 10 mw. 9. storage of at least 50 million cm natural gas. 10. treatment of dangerous wastes (numbers 11 to 21 concern, inter alia, platforms, expressways, railways, airports, water pipelines, etc.) Section 6 - The Government may grant permits for certain of those activities (those in Section 1, no. 1-10 plus platforms) only after approval of the relevant municipal council. [the so-called right of municipality veto]. Chapter 18 Section 1 - The Government shall act as the appellate authority in the following cases: 1.

decisions by State authorities concerning the establishment, modification or cessation of the status of an area as national park, nature reserve, culture reserve, natural heritage area, shore protected area, environmentally protected area or water protected area, except as regards question of compensation.

2.

decisions by the General Physician in accordance with this Code.

Section 4 - With respect to environmentally dangerous activities, county boards and municipal councils shall: 1.

through public announcement in newspapers or in any other appropriate way give the opportunity to those who will be affected by the activities to express their views.

2.

co-operate with those state and municipal authorities which have essential interest in the matter.

3.

have meetings with the person directly concerned with the activity and if necessary have an inspection of the site of the activity.

4.

inform the applicant and all those who have had views, and give them the chance to express their views.

Chapter 20 Section 1 - Such district courts as the Government designates shall be environmental courts.

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The Swedish Court of Appeal shall act as Environmental Court of Appeal, subject to appeal to the Supreme Court. Section 2. Environmental courts shall determine at first instance applications relating to the following cases: 1.

environmentally dangerous activities which require permits, under Chapter 21, Sec. 1.

2.

water activities and water installations.

3.

drainage of wetlands.

4.

compensation for damage and encroachment under Chapter 28.

5.

compensation for the effects on the community of major public works

6.

compensation and redemption under Chapter 32 and in cases concerning prohibition and adoption of precautionary measures under Chapter 32, Sec. 12.

7.

The allocation of liability among several people.

8.

Decisions as to the level of fines (penalties) pursuant to an application of the authority which has deemed the fines necessary. [practically all cases that today are categorised as List A]

Section 3 – the Environmental Courts shall act as court of appeal for decisions of county boards and other state authorities under this Code. Section 4 - The Environmental Court shall comprise a chairman who shall be a judge of the district court, an environmental assessor and two experts. One more judge and one more environmental assessor may be added. Environmental assessors must have technical or natural scientific education and experience of environmental issues. One of the experts shall have experience of issues which are within the activities of the National Agency for the Protection of the Environment. The chairman shall decide, with due regard to the nature of the case, whether the other expert should have experience in industrial or municipal activities. Section 5 – When dealing with cases which do not require deliberations in full court the quorum of the Environmental Court is the chairman and the environmental assessor. For decisions relating to permits, the court shall sit in full composition. Section 11 – In order for the Swedish Court of Appeal to act as the Environmental Court of Appeal, it shall have, in addition to judges, an equal number of environmental assessors. They shall have technical and natural scientific education and experience in environmental issues. The quorum for the Environmental Court of Appeal is four members, of whom at least three shall be judges. Not more than five members shall participate in the Court. On deliberations concerning examination of permits, the Environmental Court of Appeal shall consist of three judges. An environmental counsel can however replace one of the judges. Chapter 21 (Cases before the environmental courts) Section 1—Cases which can be dealt with by the environmental courts (the so-called application cases) include:

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ENVIRONMENTAL COURT PROJECT: FINAL REPORT 1.

permit for dangerous activities which shall not be examined by a county board or a municipality.

2.

permit for water activities which shall not be examined by a county board.

3.

approval of a completed amendment or reparation or of measures which are in conflict with rules concerning the content of the water.

4.

permit for closing down of a water installation.

5.

prolongation of the time for carrying out an activity.

6.

withdrawal or prohibition of the continuation of an activity.

7.

re-examination of water activities.

(all cases concerning dangerous activities in List A are covered by point 1 of this section)

3.2.8 Summary The new Environmental Code achieves a significant rationalisation of environmental decision-making in Sweden. It remains a decentralised system, in which regulatory power rests primarily with the local authorities, though the central Government is the regulator for projects likely to have a significant affect on the environment10. Allocation of functions to the Environmental Courts draws together the jurisdiction of the old Water Courts and the Land Courts. The Environmental Courts now have jurisdiction in relation to:    

direct regulation: they have exclusive responsibility for determining at first instance applications relating to hazardous activities, for water permits and wetland drainage; merits appeals: they act as courts of appeal for decisions of the county boards and other State authorities; enforcement: they also have enforcement functions in relation to setting administrative fines; compensation: they have functions in relation to setting community environmental compensation, and for allocating multi-party liability11.

Locus to bring matters to the courts is not confined to applicants. The right of appeal extends also to non-profit organisations, provided their purposes include nature protection and environmental protection, and provided they have been active in Sweden for three years and have at least 2000 members. That is a high threshold, which ensures that the right is not used simply for the pursuit of nimby ends. Military installations lie 10 11

Chap 17, s.1. Chap 20, s.2.

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outside the third-party appeal right.

3.3 Denmark 3.3.1 Introduction There has been long experience in Denmark with a form of environmental court. This is the Environmental Appeals Board, now reconstituted under Part XII of the Environmental Protection Act 1997.

3.3.2 Administrative system 3.3.2.1 Central and local government The Ministry of Environment and Energy is in overall command, at the State level, of administration and research in the area of environmental protection, energy and planning. It was created in 1994 from the merger of the former Ministry for the Environment and Nature Protection (established in 1971) and the Ministry for Energy (established in 1974). At regional and local level, much of the administrative responsibility has been allocated by legislation to local governments in counties and municipalities. Within the Ministry, the Spatial Planning Department is the national authority for spatial planning. It administers the Planning Act, but it does so in co-operation with, rather than supervisory control over, Denmark’s 14 counties and 275 municipalities. Denmark has one of the strongest local government systems in the world, with well over half its public expenditure administered at local government level12. Local authorities are unitary and have broad powers of competence. Central government, by contrast, is highly segmented and specialised13. The Spatial Planning Department advises the Minister in specific cases related to spatial planning. It is also the overall authority for enforcing the environmental impact assessment regulations. Spatial planning in Denmark is carried out at three levels: local and municipal planning in the municipalities, regional planning in the counties (applications requiring environmental assessment under the EU Directive are regarded as matters of regional planning) and national planning co-ordinated by the Ministry of Environment and Energy14. The Ministry can influence planning through regulation, national planning directives and the dissemination of information. Instances where the Spatial Planning Department influence planning include: 12

Albaek, E “Denmark” in Nordic Local Government Association of Finnish Local Authorities. 1996; p 17. 13 Ibid, p. 66. 14 See further D Edwards, “Denmark”, in Planning Control in Western Europe HMSO (1989) 82; Solveig Oster, “Denmark”, in Grant, M (ed), Urban and Regional Planning Legislation International Planning and Housing Federation (1992), p. 55

60   

ENVIRONMENTAL COURT PROJECT: FINAL REPORT the location of wind turbines and high-voltage transmission lines in rural landscapes; protecting Denmark’s coastal areas; and ensuring the planning of environmentally sustainable tourism.

The Department prepares a national planning report after each national election. These reports describe the vision of the Government of Denmark on national planning policies and are supported by demonstration projects intended to inspire new solutions and partnerships. Denmark is increasingly integrating environmental protection with its spatial planning. It was one of the first states to advance an integrated approach, in terms of co-ordinating physical and economic planning (or resource management). 3.3.2.2 The Environmental Protection Agency The Danish EPA is one of three agencies maintained by the Ministry and it regulates environmental conditions in industry, including air pollution, noise and odour nuisances, and effluent discharge. The Agency acts as an appeal agency for municipal and county rulings on environmental approvals. In addition, the Agency keeps the counties, municipalities and industry updated on present and future environmental requirements with which companies must comply; and it promotes environmental management and auditing in a corporate context. The EPA has particular responsibilities in relation to chemicals and pesticides, waste and recycling and the promotion cleaner technology. It also has responsibility for water quality, through the Aquatic Environment Plan, through promoting the protection and sustainable use of groundwater resources, and for wastewater treatment. It also has responsibility for combating air pollution. The Danish EPA administers the legislation on sanitary landfills and monitors clean-up and purification operations for chemically contaminated soil. 3.3.2.3 The Environmental Appeal Board The Environmental Appeal Board (EAB) is established under Part XII of the 1997 Act. Although it is linked to the Ministry, the Act provides that it is to be “independent of any instructions relating to the review of and decisions in individual cases” (s.102(2)). It is the appeal authority under the Act. The Board comprises a Chairman, one or more Deputy Chairmen and a number of appointed expert members. The Chairman of the Environmental Appeal Board is required to have the qualifications of a High Court Judge, and the Deputy Chairmen to have the qualifications of a judge (s.105). The members are appointed by the Minister for terms of up to four years on the recommendation of: (1) the Federation of Danish Industries, the Economic Council of the Danish Labour Movement, the Federation of Smaller Industries, the Agricultural Council, the Federation of Danish Agricultural Societies, the Federation of Danish Smallholders’ Societies jointly. The experts suggested by the trade and industry organisations are usually engineers and scientists, often from leading positions in the business community; and

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(2) the Danish Environmental Protection Agency (s.105(2)). The Danish EPA always selects engineers and scientists, most of whom are from educational establishments and independent institutes, although a few are from the local authorities. The names of these nominated members are maintained on registers and when a specific case arises, the Board Chairman or Vice-Chairman selects one or two experts from each register on the basis of each expert’s specialist knowledge. The jurisdiction of the Board is confined to decisions specified in section 103 of the Act, which includes: (1) decisions made by the Minister or by Agencies empowered under sections 25 [water abstraction] or 82 [call-in from local council or regional council on a matter of national importance]; and (2) decisions in matters of major importance, or of importance in terms of principle, made by the Minister or by an Agency empowered under Part 5 above and relating to listed enterprises, or under sections 28 [licences to discharge wastewater] and 30 [requirement to improve or renew sewage treatment plant] above and relating to the wastewater plant of an industrial enterprise or a local authority. The right to issue a complaint, which is effectively an appeal on the merits, is not limited to the applicant. For the majority of EPA regulations and Water Act issues, the Board is the final administrative appeals body. Decisions are reached by majority vote. As the Board is constituted as an independent tribunal, its decisions can be appealed only to the normal civil courts (Denmark does not have a separate administrative law system). That appeal will only be on the legality of its decision, as its position on the merits of the issue is final. The applicant will appeal to the lower levels of the civil courts. However, in cases falling under the Environmental Impact Assessment rules, for which the primary decision-making body is normally the County, the body of first appeal is the Nature Protection Board of Appeals. This board is comprised of one chairman who is a lawyer, two Supreme Court justices and, at present, seven political representatives. This Board is the body of final appeal with regard to town and country planning and nature protection. Under the Municipal Planning Act, appeals to the Ministry can only be made on the legal (or administrative) aspects of the decision e.g. whether a council has exceeded its powers, etc. The merits are beyond challenge, being a matter of local politics and the sole responsibility of the council.

3.3.3 Principal environmental legislation The principal Act is the Consolidated Environment Protection Act, which came into force on July 1, 1997. The Act confers broad powers on the Minister to make rules

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ENVIRONMENTAL COURT PROJECT: FINAL REPORT

relating to various spheres of environmental protection, and it also imposes a set of general duties on individuals and companies to pursue the least polluting technology, to choose sites where the risk of pollution is minimised, and to take measures to cause the least degree of pollution15. The administrative operation of environmental protection is given by the Act to the 275 local councils (or municipalities) and 14 regional councils (or counties), within a framework set by the Minister’s rules and administered by the Environment Protection Agency. The local councils have responsibility for:  sewage treatment and disposal (ss. 28, 32);  granting permits under Part V of the Act in respect of polluting industry (shared function with regional council in accordance with scheme devised by Minister) (s. 40(1));  determining permits relating to activities of the regional councils (and vice versa)  waste policy and waste disposal, within a framework determined by the Minister (s.45); and  general responsibility and power in respect of monitoring and enforcement (s.65). The regional councils (counties) have responsibilities in respect of:  licensing discharges into water environment (s.28) though with some functions reserved to local councils  requiring improvements to sewage treatment works (s.30)  granting permits under Part V of the Act in respect of polluting industry (shared function with local council in accordance with scheme devised by Minister) (s. 40(1));  supervising certain listed activities, and their direct wastewater discharges to watercourses, lakes or the sea, in cases where the power to approve in accordance with rules on approval of listed activities is delegated to the regional council;  deposition in raw material excavations and abandoned raw material excavations;  supervising enterprises operated by the local council;  regulating the abstraction of groundwater (Water Act, s.20) In the Copenhagen and Frederiksberg local areas the local council discharges the functions and powers conferred upon the regional council (s.90). The Minister has power to step in and assume the powers of the local and regional councils in matters affecting the statutory tasks of other authorities or matters of national importance (s.82). If he exercises that right, he directs at the same time that the decision should be made by the Environmental Protection Agency, and there is a right of appeal against their decision to the Environmental Appeal Board. The power has been used

15

EPA (Denmark), s.4.

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only occasionally. The Minister may also order local and regional councils to take action in particular cases (s.84).

3.3.4 The hierarchy of complaints and appeals A particularly interesting aspect of the Danish system is the openness of its complaints and appeals16 system. The Act confers specific rights of complaint. Section 98 provides that complaints against the decisions of local councils and regional councils can be made by: (1) the party to whom the decision is addressed, and (2) “any party having an individual, significant interest in the outcome of the case”. They may also be made by the other-tier council, and, in accordance with rules made by the Minister, by authorities in other countries. Specific rights of complaint/appeal are also given to: (1) Danish Society of Nature Conservation, in respect of decisions taken by the regional council; (2) Danish Angling Society and the Danish Fisheries Association in respect of decisions made by the regional council regarding pollution of watercourses, lakes or the sea. (3) Greenpeace and the Danish Sea Fisheries Association in respect of decisions made by the regional council as regards marine pollution. (4) Danish Inland Fisheries Association in respect of decisions taken by the regional council regarding pollution of watercourses and lakes. (5) Economic Council of the Danish Labour Movement in respect of decisions made by the local council and the regional council in cases of significant importance to the employment situation. (6) Danish Consumer Advisory Council in respect of decisions made by the local and the regional council to the extent that they are of considerable importance in terms of principle. (7) Local associations working primarily to protect the environment are entitled to inform the local council and the regional council of the types of decisions under the Act of which they wish to be notified. They need to verify their status by submitting a copy of their rules, and by documenting that it they are indeed organised locally and working primarily to protect the environment. They then have a right of appeal in respect of any such decisions. Appeals/complaints go in the first instance to the Minister, but their determination has been delegated by the Minister to the Environmental Protection Agency. Certain minor cases, defined as such by a statutory order, cannot be appealed17. Lodging a complaint or appeal suspends the effect of an order or prohibition unless the appeal authority otherwise directs (s.95), but it does not suspend the effect of a permit, approval or exemption (s.96(1)). From the Minister’s decision, appeal lies to the Environment Appeal Board, which has final authority to determine the matter. 16

The official English translation of the Act uses the two expressions interchangeably. These include cases concerning household pets and livestock, wood burning stoves and sewage effluents of less than a specified quantity. 17

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3.3.5 Land-use planning Land-use plans are prepared at the regional and more importantly the municipal level. In drawing up its “municipal” (structural) plan, the authority must publish a list of proposals, and allow three months for initial public debate. It then must publish its draft plan and allow a further four months for objections before finally adopting the plan. Similar consultation procedures are followed for the “binding land use” plan, which can be adopted in the case of smaller projects such as the development of a single large factory and where a substantial upgrade to a motorway is involved. Danish law also has a sectoral approach to planning, which means that plans are drawn up on a national basis for sectors such as water, waste and roads. This is at the policy rather than binding plan level and thus is not as relevant to an examination of dispute resolution. However, the extent of decentralisation means that the main functions (in practice) are undertaken by the lower levels of government or by the various agencies. Denmark has 16 regional councils and 275 local authorities, but these have only administrative powers. There is no appeal on the contents of a plan because the public participation procedures are deemed to be adequate to resolve all disputes. Appeals on the legal aspects of decisions on permits are made to the municipal and regional authorities, in the first instance, and then to the Minister for the Environment. Beyond this initial line of appeal lies a range of other possibilities, depending on the issue involved. Compulsory purchase orders go directly to the Minister for decision; municipal planning matters go to the local courts; and Urban and Rural Zones matters, together with environmental issues such as emissions, go to the EAB (Environmental Appeals Board). Civil actions may be brought for infringement of the local plan, and these also go to the local court in the first instance. The next appellate step will vary in each instance.

3.3.6 The scenarios Scenario 1: the highway proposal The main tool in this scenario is likely to be a (binding) national planning directive18, which deals with individual major projects of national interest e.g. a new runway for Copenhagen airport, and effects the safeguarding of land. There have been about 13 such directives in the past 10 years. National planning is an ongoing rather than a fixed process. The main source of national policy is the Spatial Planning Department within the Ministry, which co-ordinates regional and local plans and also prepares plans for the national planning framework. For a major road project, the Ministry of Transport is responsible for undertaking public consultation. Under s.15(1) of the EPA the Minister of the Environment, may, after negotiations with the Minister of Transport, make rules requiring that major road projects should be submitted to him before being initiated. In the case of motorways, Parliament must adopt an Act specifying the line. The procedure includes a requirement for an environmental assessment.

18

A landsplandirectiver.

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Scenario 2: manufacturing facility on greenfield site On the issue of zoning, and whether the land is suitable for manufacturing, the theory is that the relevant plans will leave no scope for discretion and the council will have to follow the detailed directions therein. At the local level, the developer must in theory follow the local structural plan and the binding local use plan, which are adopted with a high level of public consultation. Both of these will have been drafted to accord with both regional and, ultimately, national policies. In practice, proposals such as that in our scenario will probably stimulate the adoption of a new local plan to allow debate on the issues. In addition, the applicant must meet the requirements of the Building Regulations as regards the materials used in construction of the facility, and this is also a local responsibility. As regards emissions, the main body of legislation is contained in the Environmental Protection Act, Part 5 of which contains a system of approvals for businesses which are potentially heavy polluters. A permit must be obtained before commencing operations. The approval will normally contain conditions setting down maximum levels of emission, and will also extend to noise and odour nuisance. The levels are fixed by the National Environmental Protection Agency (“NEPA”). There is continual monitoring by the consent authorities, who have powers to close down the facility. In this scenario, the regional authority will be responsible for determining applications for consent, although the municipal authorities share responsibility for minor industrial pollution. For certain major projects, NEPA may be the competent authority.

Scenario 3: breach of discharge consent Enforcement of Danish environmental law is achieved through both civil and criminal mechanisms. Criminal proceedings are the prerogative of the public authorities, and lead usually to punishment by fine, although imprisonment is possible under certain statutes. It is not an entirely symmetrical system: for example, the Agricultural Courts are the first court of appeal for a number of EPA and effluent discharge matters, particularly when issues of liability and damage are being addressed. There is a high premium placed on the availability of environmental information, partly to enable civil enforcement. The Publicity in Administration Act 1985 lays the groundwork, and grants a general right of access to a wide range of administrative files, with particular rights of access for those “specifically concerned”, a category designed for these circumstances. The civil system is widely used as a means of enforcing environmental obligations under Danish law.

Scenario 4: toxic tort The most likely option in our scenario is an action based on the Compensation for Damage to the Environment Act 1994. This applies to pollution of the air, water, ground or subsoil. It relates only to damage resulting from certain, particularly polluting, types

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of activity, as listed in a schedule to the Act. Liability is strict, except where the damage results from actions taken to comply with statutory requirements. The liability rules extend to personal injury, damage to property and economic loss, in addition to clean up costs. There is no upper limit set on compensation. The possibility also exists of a claim in negligence, which is based largely on existing case law. The action in both instances would be brought in the general civil courts, which comprise the lower court, High Court and the Supreme Court (appeals only). The EAB has no civil jurisdiction.

Scenario 5: 100 new dwellings on greenfield site The issues discussed in relation to scenario 2 above are of relevance also to this scenario. There is a high degree of certainty resulting from the adoption of local plans. However a further consideration here is the Urban and Rural Zones Act, which breaks zoning into a number of categories (essentially urban, rural and “summer house” zones). This site in our scenario is probably “rural” land under the Act, and special dispensation will be required from the regional authority to allow such a development. The Minister for the Environment has a “call in” type power in such cases, if he decides that the matter is of more than just local or regional interest, and the decision is then taken by his department. For the Urban and Rural Zones Act, the EAB is the appeal board. The National Agency for Physical Planning also has extensive powers under this Act and effectively acts as the secretariat for NEPA, providing guidance and ensuring publication and availability of the information to enable the consultation process. Ultimately it is subject to the Minister’s directions.

Scenario 6: the domestic garage Such development requires consent. The developer must comply with the provisions of the Building Act (and regulations), usually by an application for a building permit. The Building Act itself is of a general nature, not usually setting precise requirements. When a permit is granted, there is usually only one condition—that the building comply with the specification in the application and the provisions in the regulations. Hence it places the onus on the applicant to ensure compliance. There are special regulations in place for Small Buildings, as defined, and the various categories of work permitted on these buildings (which include garages). The National Building Agency is responsible for these regulations, and updating their (mainly technical) standards. It is unusual for a permit to be refused. In some cases, there is a different procedure, similar to that found in some of the categories of permitted development rights under the English Town and Country Planning General Permitted Development Order. Examples include the construction of small extensions to garages (less than 50 square metres and in conjunction with the

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home), and minor demolition work. These types of works need only be reported to the municipality, unless the local plan specifically provides to the contrary. The appeal route for discontented applicants and neighbours is initially to the municipal authority itself, and from there to the regional authority. From there, there is an appeal directly to the Ministry.

Scenario 7: objections to local plan The basic procedures for adoption of the municipal “structural” and “binding land use” plans is outlined in the discussion of Scenario 1 above. Appeals against rezoning go to the Environmental Appeals Board, once appeals to the municipal and regional authorities have run their course. The National Agency for Physical Planning acts as the main consultative agency to the authorities in this case, but subject to the directions of the Minister.

Scenario 8: proposed international airport As mentioned in relation to Scenario 1 above, the Minister for the Environment is empowered to issue national planning directives. In the past these have dealt with individual projects such as the provision of an extra runway at Copenhagen airport and the national requirements for further nuclear power. It is not possible to carry out any major project such as this without the framework of a planning scheme, and this presupposes extensive public consultation. Major projects also require a permit from the environmental authorities under the provisions of Part 5 of the EPA (see 2. above). Some larger projects may well be the subject of specific legislation, which would typically set up special agencies to deal with administration. An example is the Jutland Link, a 15 km project, similar to the Channel Tunnel, which was carried out mainly under special legislation. The Minister for the Environment was constituted as the appeals body, and most of the administrative issues were addressed by the National Forests and Nature Agency. Most of its decisions were challenged, some in the courts. The appellants included sub contractors and other business interests, as well as the environmental associations already mentioned.

3.3.7 Summary The Danish experience is of great interest to our study. The Environmental Appeals Board is one of the closest—and longest established—systems in Europe to our model of an environmental court. We can identify the following principal characteristics: (1) a jurisdiction which includes administrative appeals. However, its functions do not extend to town and country planning, or nature protection appeals, both of which go instead to the Nature Protection Board of Appeal;

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(2) there is open “standing” for appeals for the organisations listed above. Unlike Sweden, there is no threshold of membership for environmental organisations to enjoy rights of appeal, merely a requirement of verification of status; (3) there is no criminal or civil jurisdiction; (4) the Board has a mix of technical expertise alongside the lawyers.

3.4 The Netherlands 3.4.1 General principles The Dutch do not have a specialised environment court, and we need therefore to examine how issues which would be assigned to such a court elsewhere are resolved in the Netherlands. As with Germany, environmental disputes are dealt with principally by the Administrative Court, and to a lesser extent by the civil process. Quite distinct systems exist for physical planning and for environmental protection, although they overlap with more recent legislation.

3.4.2 Government systems There is no equivalent to the UK Environment Agency, and the main function of coordination is carried out by VROM (the Ministry with primary, although not sole, responsibility for the environment). Ministers have the power to issue directives to local authorities following approval of the national planning policies (rijksplanologhische kernbeslissigen), which will have been laid before Parliament for six months. Local authorities must then incorporate the directive’s provisions in their legally binding local plan, though, given the emphasis on public participation, this may be a lengthy process19. Dutch environmental law, and particularly the planning process, has frequently been criticised for its detailed, inflexible and therefore very lengthy procedures. For planning appeals, for example, a minimum of 18-21 months for determination is common, with up to five years for more detailed projects. Locus standi rules are very liberal, extending to the right to initiate administrative proceedings, and wide rights of appeal and objection. Government policy has been strongly influenced by the pressure resulting from such actions. “Interests” has been broadly interpreted, and environmental associations have civil rights of action and the right to formally complain about nonprosecution.

19

Jenno Witsen and Filip Bosscher, “The Netherlands”, in Grant, M (ed), Urban and Regional Planning Legislation International Planning and Housing Federation (1992), p. 147; HWE Davies, Planning Control in Western Europe HMSO (1989) 339.

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The planning system remains almost totally distinct from the environmental policy control functions of VROM. Acts of Parliament are the primary instruments of Dutch law, supplemented by local byelaws. The Netherlands operates a plan led system, and the level of State intervention has traditionally been very great, not least because of the highly sensitive and vulnerable character of the country’s hydrological systems.

3.4.3 Recent reform The Netherlands has a civilian legal system, and in accordance with the Napoleonic tradition all administrative appeals, including those against land use and environmental permit refusals, or conditions, go directly to the Administrative Court of the Council of State. It is significant that the lower level courts have no jurisdiction in environmental cases, and that this is an exception to the general rule for jurisdiction for judicial review under the General Administrative Law Act20. An important principle of that Act is that of decentralised jurisdiction, and the Act generally allocates first instance jurisdiction to the district courts. The Court has now established a special Advisory Board to assist on environmental cases. It is not a new body, but was previously part of the Ministry from which it split in early 1996. In 70% of these cases before the court, the Advisory Board is asked for advice. For the most part, this is confined to technical questions, but it also sometimes strays into juridical questions, on which the Board is not strictly speaking supposed to furnish advice. It also deals with policy questions, and has had a great impact in this area. The Board comprises between 30 and 40 experts, and around 8,000-9,000 cases go on appeal each year. Environmental appeals in fact form the great bulk (over 60%) of the Administrative Court’s business. This is because, although there is a lower level of administrative courts, they do not have jurisdiction in environmental law. There are only three chambers in the Administrative Court, and one of them does exclusively environmental work. The judges are not specialised by training, but in fact they have tended to become specialised by dint of having undertaken so many cases. The Court reviews all environmental appeals on their merits, and very intensively.

3.4.4 The scenarios Scenario 1: the highway proposal There are three main administrative levels provincial/regional and local/municipal.

in the Netherlands:

national,

There is no requirement for a national highway plan. Instead, national policy is integrated via the provinces into the two types of lower level plans, i.e. the non20

General Administrative Law Act, which came into force on January 1, 1994; arts 8.1 and 8.6.

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obligatory “district structure plans” (a description of desirable long term development) and the legally binding “bestemmingsplan” (or district plan). National policy, reviewed every five years in a Structural Outline Scheme, guides the provincial council when it draws up its regional plan (which in turn sets the yardstick for evaluation of the district destination plans). Further down the hierarchy, this must be respected in the local plans. Therefore, the discretion of local administrations in preparing local plans is more apparent than real. That is not to say that opportunities are not provided for public and administrative consultation: the Advisory Council of the Ministry of Housing, Physical Planning and the Environment (VROM) exercises this function in drawing up policy at the national level. The district plan provides an extremely detailed description of the planned development of any given area outside already built up/urban areas. The municipal council decrees the need for such a plan, and then prepares the plan with public input, usually through an inquiry. When drafting the plan, it is required to allow at least one month for objections, before the plan goes to the regional planning committee for inspection/approval. It also allows a month for appeal by the authorities or anyone still unhappy with the results of the procedure. Once adopted, the scope for flexibility is very limited, unless the plan has already left certain details to be worked out. What then are the options for local opposition to the proposals? The public are expected to have fully voiced their opposition at the earlier stages. However they may appeal to the Crown Disputes Department of the Council of State (a separate section from the Administrative Court), who pass it to the Ministry’s technical bureau for a report. Having received this, and considered the merits of the objections in legal terms, the Department forwards its draft decree (reflecting its views) to the Minister. He finally makes the decision, on public policy grounds, to approve or withdraw the plan. It is very rare for the Minister to deviate from the Council’s recommendation. The process is necessarily prolonged, and may take up to five years in total. An EIA may be required for the proposal, and the elements of this process are detailed below (see scenario 8). New legislation was introduced with effect from the beginning of 1997 for major infrastructure projects, including major road schemes, national railways and main waterways. It involves public participation, in three time-limited stages, and local planning authorities are consulted at all stages. The purpose of the new legislation (the Tracewet) was to speed up the granting of planning permission for major projects. Scenario 2: manufacturing facility on greenfield site In a scenario such as this, it is likely that the municipality will seek to make a new binding land use plan for that area to ensure that requirements of public consultation are met, and to ensure that the new facility meets the standards of the regional plan. In a sense the municipality is in partnership with a manufacturer in such a proposal, as they seek to meet the stringent standards of Dutch law. There is a wide network of “covenants” between government and industry dealing with environmental protection, a

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practice which has developed not least because of the problems of securing legislative change through consensual negotiations21. In addition to the planning process provided in connection with scenario 1 above, the developer must apply to the municipality for a building permit under the prescribed standard form procedure, which allows for the physical construction of the plant. This is the responsibility of the municipal building Inspectorate, who will, having checked the extent of accordance with national regulations, grant or refuse a permit. Appeals against this decision lie, in the first instance, to the municipal council and from there to the Administrative Court of the Council of State (which holds primary responsibility for administrative appeals). If the permit is granted, the developer is also required to notify the relevant authorities of the completion of works. The other major concern is the emissions issue, and activities affecting the environment are heavily regulated in this regard. The Environmental Protection Act 1993 reformed procedure in this area by introducing a single environmental permit where five separate permits previously existed. The legislation also enables the co-ordination of this procedure with the building permit application. It was intended that this should enable further harmonisation of the planning and environmental sectors, historically distinct in Dutch law. For the combined permit, the competent authorities (in most cases the municipality in which the facility is to be located) must now assess all environmental impacts of the proposed activities in an integrated manner. The application must contain detailed technical information, and is usually drawn up by environmental consultants. Once a draft decision is made by the authority, it is published and open for public comment for four weeks. If it proves to be a controversial proposal, a public hearing is likely. A decision should issue from the consent authority within six months. However, while air pollution can now be considered alongside nuisance, waste and noise, separate arrangements still exist for effluent discharge. This consent, granted under the Surface Waters Pollution Act, may be granted by one of the special Water Boards under the water legislation or occasionally by the regional executive: for all the consent procedures, where the project is deemed to exceed a certain threshold the regional executive may remove the decision from the municipality. Advice on the effect of the scale of a certain project may be obtained from the Environmental Inspectorate, the central advisory agency for the environment. A right of appeal against planning and consent decisions is open to the applicants, advisors, objectors and any other person with an interest (widely defined) in the matter. The first stop is again the Administrative Court of the Council of State. That court may issue interim orders pending an appeal. The proposal may require an Environmental Impact Assessment, under the 1987 Act as amended in 1993 to harmonise with the EC Directive. However, it is possible that the threshold may not be reached in this scenario by the establishment of a single facility.

21

See further Kees Bastmeijer, The Covenant as an Instrument of Environmental Policy in the Netherlands (OECD, 1996); A.H.G. Rinnooy Kan, President of the Confederation of Netherlands Industry and Employers VNO-NCW, to the international conference “Sustainable Industrial Development: Sharing Responsibilities in a Competitive World” [22 and 23 February 1996].

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Scenario 3: breach of discharge consent As a preliminary point, public access to information on the environment is highly developed in the Netherlands, where there is open access to the network of records and registers required by the various legislation. The main regulatory and advisory body is the Environmental Inspectorate, which is a decentralised government body with the primary function of ensuring compliance. On the assumption that reasonable evidence of an offence is available from such information, the first option is administrative enforcement, which remains the prerogative of the authorities. The possibilities here range from financial penalties to revocation of a single permit, and ultimately closedown. Appeals against the proceedings are to the Administrative Court of the Council of State. Criminal sanctions are a government prerogative. Most environmental statutes contain specific offences in this sector, as does the main Criminal Code. These are pursued through the separate criminal court system. It is also possible to use civil law to enforce environmental responsibilities. General tort provisions allow both for the recovery of damages, and the obtaining of an injunction, by any person who has an interest to be protected under civil law. Interest is very widely defined, and includes environmental associations provided they satisfy a number of statutory criteria. A series of Supreme Court decisions since 1986, notably the 1992 Kuunders case22, clearly acknowledged this right, and the 1994 Collective Actions Act codified this position. This supplemented the previously established statutory right of environmental associations to seek judicial review in administrative law. However, the position is different with public authorities. Although in principle they have access to civil remedies, an action brought by them will be declared inadmissible when recourse to a civil court would constitute an unacceptable interference with public law. Whenever an authority may obtain the same result by using an administrative remedy, it is highly likely that such an interference will be found. Since 1990, VROM has had powers of administrative enforcement, including the power to issue orders backed by the sanction of periodic penalties, and it follows that there is only limited scope for a public authority to apply for an injunction in the civil courts23. The civil and criminal justice systems are quite distinct from the administrative system described above. The route of appeal for either of these two systems leads ultimately to the Supreme Court, which is on a par with, not superior to, the Council of State.

Scenario 4: toxic tort As for scenario 3 above, the route is through the civil court system. A civil action in tort is open to any person who has an interest which is protected by civil law. The fact that 22

See further Gerrit Betlem, “Standing for Eco-systems: going Dutch” [1995] Cambridge Law Journal 153. 23 See eg, Hoge Road (22 October 1993) AB 1994, 1; the Magnus case.

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any necessary permit has been obtained by the facility will not protect the permit holder against liability, although it could lessen his exposure to liability for those activities which fall within the scope of the permit. The existence of a wide network of information is likely to enable the injured party to obtain information on the actual level of emissions from the factory.

Scenario 5: 100 new dwellings on greenfield site Such a development proposal will fall to be assessed against the regional structural plan, and possibly the national physical plan, where the future housing needs of the region would have been analysed in detail. These documents will indicate the type of housing required to serve different elements of the market, and may allow for the identification of certain municipalities as suitable locations. If this is the case then lengthy consultation is likely to follow between developer and authority as to how the site should be developed. This will be followed by the adoption of a new binding land use plan by the municipality, which will need to be approved by the regional executive, and will set out in great detail how the development should then progress. The process will be that outlined at scenario 2 above, with the attendant rights of participation and appeal. The issue of zone change from agricultural to housing will form the major part of the debate, along with the provision of services and utilities. There is a right of appeal to the Crown, in the event of dissatisfaction with the result of the procedure, which will go to the Crown Disputes Department of the Council of State. An EIA may be required, either under the legislation or as an exercise of Ministerial discretion (see scenario 8 below). From each of the scenarios outlined thus far, it might appear that little room remains for discretion in Dutch planning law. In reality, this is not the case and there are a number of mechanisms whereby the municipality may allow a minor development such as this which is, strictly speaking, in conflict with the binding plan. For example, the municipality may grant exemption under the so called section 21 procedure, which in theory freezes the present plan while a new plan is under preparation but also allows development to proceed under the authority’s broad control. This is a common escape route for development of a minor nature to which the authority has no objection. It can easily and frequently be used where there is a “postage stamp” plan covering only a single site. It can be blocked of the Building Inspectorate or the aesthetic commission object to the structure. Alternatively, under the section 5 procedure, the authority may simply turn a blind eye to development, in circumstances that are very similar to above. The only difference is the avoidance of the bureaucracy of section 21. Infringement of the provisions of the binding local plan is a violation of the administrative code, and the usual penalties are financial. Of course the authority is likely to exercise its own enforcement powers prior to arriving at that point, and these

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may include an order to terminate the work (or eventually a court order to dismantle the structure).

Scenario 7: objections to local plan The basic, legally binding plan is the Bestemmingsplan (destination plan) which is obligatory for all parts of a municipality outside a built up area. It must provide a detailed description both of the planned use and physical form of new development. This includes the possibilities for land use, and the extent of detail will reflect the level of flexibility which the local council wishes to retain for itself in its own developments. Although prepared by the municipality, its content can be shaped by regional and national issues, prescribed as policy guidance at the upper levels of government. There is an exhaustive consultation process at local level, under which the municipal council must justify how it deals with objections. It must then be approved by the provincial executive which will consult its own planning experts to ensure that the plan complies with regional policy. The theme is one of consensus and the system can be very time consuming. Once adopted, the basic principle is that any uses contrary to the plan are illegal, and permits are granted only for minor departures. Objectors to a Bestemmingsplan lodge objections with the regional executive. From there, there is a further right of appeal to the Crown Disputes Department of the Council of State, and this involves a further long process. The Council obtains a technical planning report from its own advisory staff. This is then published by the Crown Disputes Department, which holds a public inquiry before drafting an advisory report for the Minister. It is the Minister who ultimately decides whether to accept that recommendation. This is a quasi-judicial procedure in that the decision is made purely on the grounds of “law and expediency” as a matter of government policy. There is no further appeal to the courts. The process may take anything from 18 months to five years.

Scenario 8: proposed international airport In this scenario, it is envisaged that the Environmental Impact Assessment procedure is sufficient to deal with the various planning and environmental effects. Under the 1987 legislation, as amended by the 1993 implementation of the EC Directive, EIA is required for proposed activities which may “significantly affect” the environment, such as major motorways, mining activities, refineries and large chemical plants. The proposal for an international airport is clearly within Annex I to the EC Directive. The first stage is preliminary public consultation, where the proposal is notified in a letter of intent from the initiator. This enables the authority to draw up the guidelines for the EIS, and these must be strictly adhered to by the developer or its researchers/consultants. These are relatively standard considerations. Having received the developers’ initial report, the independent EIA Commission checks the adequacy of

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the assessment. However, the final decision on the acceptability of the project always remains with the consent authority. It is possible to appeal against the final decision, in similar manner to most of the decisions in our above scenarios, though not against the content of the EIS itself. In general, the EIA process and the decision about the proposed activity should run in parallel. It is intended that the various procedural steps and decisions be taken in tandem by the different authorities involved e.g. air pollution and effluent management authorities, (including preliminary consultations, review and decision taking) should be co-ordinated as closely as possible.

3.4.5 Summary The Netherlands provides us with a useful example of how a strict regulatory system for environmental protection can be managed in a civilian legal system. The key is the wideranging role of the Council of State, whose functions, in its different divisions, range from advising the Government on planning and environmental policy, and handling all appeals. It is a flexible administrative jurisdiction, quite different from the British tradition. It is also become heavily dominated by land-use and environmental appeal work. The Administrative Court has developed, of necessity, into an environmental court, with a staff of expert advisers. However, it is not a model which has much resonance with the common law tradition, because it is rooted in a wholly different constitutional tradition and administrative culture.

3.5 Spain 3.5.1 General principles In the second of our three civilian legal systems, the State is not unitary but quasifederal. The Spanish Constitution affords provides special protection for the environment, but it also provides for the decentralisation of power, and the two objectives do not fit harmoniously together. Exclusive competence to adopt framework legislation (usually direct copies of EU Directives) is vested in central government, and also in the Autonomous Communities. The Autonomous Communities have normal legislative powers to enact their own laws for the development of the basic laws enacted centrally, and of European laws on environmental protection, and they have the responsibility of adopting detailed measures and additional regulations for protection. They also have primary responsibility for enforcement. At national level, administration of the environment is concentrated in a new single, powerful Department of the Environment (the Ministerio del Medio Ambiente), which was created in 1996. It has comprehensive powers in relation to water, air, nature, soil and coasts.

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3.5.2 The constitutional division of competences There is a three-tier structure of government in Spain: in addition to the central administration, there are 17 Autonomous Communities (including the historically powerful communities like Galicia, the Basque Country, Catalonia and Andalusia), and 8,000 local authorities grouped into 52 provinces24. The Central Parliament enacted a new and radical planning law in 1992, but it did not find the support of the Autonomous Communities and was challenged in the Constitutional Court. In 1997, the Court declared most of the articles of the Act to be null and void on the ground that the State was not entitled to enact measures affecting the competence of the Autonomous Communities relating to town and country planning. This has meant that now only they can enact legislation on subjects or issues constitutionally reserved to them. These include matters such as town and country and regional planning, and also environmental issues. The upshot of this ruling has been that each of the Autonomous Communities now adopts its own town and country planning law. Hence, there are now 17 new planning laws: six of them are close copies of the former state laws of 1976 and 1992, five are more innovative and progressive, and another and six are modelled on the national Land Development and Land Value Appraisal Act 1998, which followed the Constitutional Court’s ruling. The national law is now confined to the principles, general rules, development rights and duties of land ownership, guaranties, value criteria and legitimation of land compensation, expropriation (compulsory purchase), fiscal and land value appraisal of built up and developable areas. All other matters respecting planning and environmental control are now vested firmly in the Autonomous Communities, such as the form, content, and types of procedures of approval for physical planning and planning permission, land programmes, development and environmental control, management of land policies, public participation and administrative penalties for enforcement purposes.

3.5.3 Local government Greater integration of decision-making on town and country planning with that on environmental pollution permits is not, however, constitutionally impossible in Spain. Indeed, there are already some superior courts (the jurisdictional top tier in the regions) which have divisions that are specialised and devoted to deal with planning and environmental conflicts. These have developed out of the need for a technical division of labour, and because the complexity and concentration of such appeals require such a juridical monoculture. But it is unlikely that Spain would ever set up a formal and separate environmental court, because of the unitary design of judicial power in Spain and the inertia against 24

Javier Garcia Bellido, “Spain”, in Grant, M (ed), Urban and Regional Planning Legislation International Planning and Housing Federation (1992), p. 175.

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change in their own internal rules. Enforcement against land use or environmental planning control infringements may take two separate paths: the criminal route (civilpenal laws jurisdiction) or the administrative courts. As with the Netherlands, there is nothing to prevent further specialisation in the administrative courts. This happens already in some sections of the Supreme Court (which is the top state tier) when the volume of appeals in any given area warrants it This already happens, for example, with fiscal or economic appeals, which require very specialised divisions of the court.

3.5.4 Substantive constitutional protection Spain is unusual amongst European states in having incorporated substantive environmental protection into its constitution. Article 45 of the Constitution of Spain confers a right to a clean environment and imposes on public bodies the duty to preserve it. This duty obliges the public powers to a “rational use of all the natural resources in order to protect and improve the quality of life and of defending and restoring the environment, supporting it on the indispensable collective solidarity”. The Constitution promises that the violation of such principles “will be prosecuted and punished as criminal offence and the damage caused must be repaired”. Its actual impact is direct and powerful. It has had a major influence in practice, shaping and leading the whole of environment legislation.

3.5.5 Public participation Spain is noteworthy for the powerful rights of public participation that it confers. These derive originally from the dictatorial Franco era, and were developed so as to counterbalance his close restrictions on freedom of speech. They are open rules which today still allow every one, especially NGO’s, green groups and others who want to take part as third parties in any public inquiry about planning or environment problems to do so with no legal restrictions, even if they have no “direct interest”. This is in stark contrast to the normal rules of direct interest in European countries such as Germany, Sweden, Norway and France.

3.5.6 Land-use planning Planning law is now primarily the responsibility of the autonomous communities, and there is no centralised planning appeals board. Applications for environmental or landuse permits are made in the first instance to the municipality, and from there to the lowest court level of the administrative courts of the Autonomous Community. From there, an appeal may progress to the Supreme Court, or ultimately, depending on the character of its claim, to the Constitutional Court.

3.5.7 The scenarios Scenario 1: the highway proposal The process here depends on whether the route is a “national road”, in which case it should be part of the national road plan and a national concern. Alternatively, if it is a “local route” it is under the auspices of the Autonomous Communities, and should be dealt with in their detailed regional plan.

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On the assumption that this is a national project, it is the prerogative of the national government to proceed. The approach in practice is mainly sectoral, and the road plan is presumed to deal with outline matters such as the best route. The Autonomous Community has rights of challenge to a special national committee. The central government is not bound by the recommendation of the committee, but their failure to comply with it leaves the Autonomous Community with a right of appeal to the courts. The EIA process, which would be obligatory here under EC law, may satisfy the need for public participation in the planning process. Under EIA legislation adopted in 1986 there is an obligation on the compiling body (the consent authority) to consider public comment, for which at least a month must be allowed. However, there is no certification resulting from EIA, as it is supposed to harmonise with the other elements of the planning system. But the sectoral nature of the approach at national level means that there is a missing link in the chain and the concerns expressed during the EIA process may not fully feed into the decision finally reached by the consent authority. Rights of appeal are limited in this scenario and in practice the courts are very reluctant to interfere with national policy making once it is clear that a reasonable degree of consultation has taken place. The national sectoral plans are not binding to the same extent as the regional plans described below, and so the opportunity to litigate their provisions is not readily available.

Scenario 2: manufacturing facility on greenfield site The regional plans prepared by the Autonomous Communities are more detailed than the national plans, and are approved only after an extensive consultation exercise, consisting of two distinct levels of public inquiry. These plans can be up to 3 years in preparation. It is during the formulation of these plans that legal challenge is most likely, as locus standi for appeals is relatively liberal. In theory this means that no discretion remains with the municipal authority as to whether or not to allow the project, but in reality the municipality will bargain with a developer to modify the local plan (general municipal plan). It is this unit which will be responsible for determining both the zoning and permit issues involved in this scenario. The first matter for the developer is to apply for a development licence (to confirm compliance with the local plan) and a building permit (which details the physical construction of the facility and connections to public utilities). In addition an occupation licence will be required prior to commencing operation of the facility. If the municipality fails to decide an application within 2 months, the applicant must appeal to the Autonomous Community, which is obliged to decide within 1 month. Failing a response the applicant may normally proceed with construction (provided he is confident that the work complies with the law as set down in the regulations). This is known as the principle of positive silence.

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Appeals may be made by both the applicant and third parties, regarding the respective decisions. Further appeal rights lie to the administrative court from the planning authority decision. Next, the developer must concern himself with the emissions issue. Air and water legislation must be separately considered. As regards atmospheric pollution, the Air Act 1972 is the main statute, as updated by recent regulations. To a large extent, powers of regulation are constitutionally assigned to the Autonomous Communities, but their standards are harmonised by European rules. The Water Act 1985, as supplemented by autonomous legislation, delegates functions to 8 water authorities (one for each of the 8 natural water basins of Iberian Peninsula), under the national Environment Department. Detailed applications for discharge must be made to the Authority before operations commence. There is generous access for challenge by third parties. Scenario 3: breach of discharge consent The Water Law of 1985 recognises the possibility of third party enforcement (by residents or NGO’s) of compliance with the detailed discharge provisions. The generous provisions as to public participation conferred by the Spanish administrative rules, noted above, allow objectors to take part in public inquiries or to commence proceedings (through the so called “popular action”) in the courts. Members of the public also have wide rights of access to environmental information that are granted by the Right of Access to Information on Environment Matters Act 38/1985, 12 December. There is no “administrative secrecy” in Spain beyond the normal behaviour of any politically democratic power. Interim orders to prevent the allegedly polluting activity are almost impossible for third parties to obtain. The regional Water Authority itself may take over the running of the plant in specified extreme circumstances, and can fine the facility in addition to obtaining clean up costs. Ultimately the possibility of criminal proceedings also remains, under Art. 347 of the Criminal Code, but there has been reluctance to resort to criminal proceedings. Some Autonomous Communities (such as Catalonia) are more advanced and are more likely to respect the requirement, although the annual report of the Department of the Environment remains the main source of information on, for example, compliance with EC legislation. There are, in some regions, local user councils and a range of other boards of this type, but none of these appear to have legislative backing.

Scenario 4: toxic tort

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The usual rights of civil action exist. Under Art. 1902 of the Civil Code, there is strict liability in tort for causing damage to persons or property.

Scenario 5: 100 new dwellings on greenfield site This scenario involves a number of the issues regarding decision making in the zoning area already referred to at 2. above. The zoning decision will be a matter purely for the municipal authority, in theory confined by the requirements of the municipal plan although some flexibility is afforded in reality. All the municipalities of any size are required to have a General Urban Plan. In practice, 96% of the Spanish population live in areas with legally approved municipal town and country planning provisions, and around 75% of the total number of municipalities have an approved General Plan. The General Urban Plan is an extremely detailed blue print Master Plan. Land is traditionally divided by these plans into three classes: urban, developable and non-developable. The developer in this scenario will be required to apply for a development licence and building consent, and may well be obliged to go through the EIA process, which will allow for public participation. Rights of appeal against a decision on the project lie to the next planning level (that of the Autonomous Community), which would probably be involved in assessing larger projects of this scale in any event. The developer is allowed to proceed if he does not receive a response within a three-month period—provided he is confident that it is in accordance with the local plan. The same administrative court structure as described above is involved. However, non-programmed land (not detailed in the plan), such as the land in our scenario if it is on an urban boundary, may be the subject of modification by the local authority when the authority can maintain that the overall integrity of the plan remains intact. The courts are reluctant to interfere with the discretion of the local authority in such instances.

Scenario 6: the domestic garage Nothing may be constructed in Spain without obtaining permission from the municipal authority (see the discussion of this procedure above). Any such building is deemed illegal and must be demolished unless the owner can demonstrate compliance with the plan and obtain retrospective permission. Even then he remains liable for a civil fine. In practice, application of the law varies to a great extent depending on the nature of the building and the municipality involved. The broad definition of development means that many people ignore the permit requirements for minor works. In many areas, some 20% of new buildings are illegal (figures from the early 1990’s), and local authorities are

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often slow to enforce the law. The Autonomous Community may intervene in extreme cases to ensure compliance with its own regional plan. Powers to appeal will lie against the decisions of either the municipality or the Autonomous Community, as discussed at 2. above.

Scenario 7: objections to local plan At the municipal or local level, the relevant planning document is the General Plan which covers all matters of land use, including economic development, and should be (but in practice is not) prepared by all municipalities. A prescribed process of consultation, including two public inquiries, can take up to three years, and results in a plan which is binding with full legal status. In theory no discretion is allowed to depart from the plan. It is also envisaged that the municipal plans will accord with the regional plans, but in practice these latter appear to be drafted primarily on a sectoral basis making co-ordination more difficult. It is likely that land use in this scenario will remain a local concern, certainly in terms of enforcement. For appeals against the contents of a local plan as finally adopted, the procedures appear rather weak, possibly due to the high level of consultation. In certain areas, notably some major tourist areas, there is greater concern with the ability to challenge, as also in Madrid and Catalonia. The scenario is much the same as for No. 5 above, in that the same categories apply and the same administrative court structure is available to the appellant. Scenario 8: proposed international airport When the central government proposes to build a facility of national interest, such as a major power station, which is unlikely to have been provided for in regional or local plans, difficulties arise. There is a special committee, the so-called Sectoral Conference, comprising representatives of the Autonomous Communities and Central Government Departments, where such disputes may be discussed and resolved, but it is not a final dispute resolution body, because a dissatisfied local or Autonomous authority can appeal to the courts, and ultimately to the Constitutional Court. There is another internal Territorial and Town Planning Central Committee at central level, which is also a consultative body, but with powers only to consider central government projects which are in contrary to municipal plans. However, it similarly lacks any power to determine the dispute, because of the right to take the matter to the Courts.

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3.6 Republic of Ireland 3.6.1 General principles Irish legislation for environmental protection has developed quickly over the past 15 years, largely in response to European directives, to the point where the country is now one of most advanced in Europe in the range and effect of its environmental instruments25. Ireland also has a model of an environmental court, in An Bord Pleanála (the Planning Appeals Board), which deals with appeals from local authority decisions on emissions, planning permissions and a range of other planning and environmental matters. Appeals on any point of law lie from it to the High Court. However, towards the end of 1999 it was announced that the Government had determined to establish a specialist Environmental Court, in succession to An Bord Pleanála. The proposal came as part of a national development plan which seeks to make significant improvements to national physical infrastructure, and it reflects a concern that currently infrastructure proposals are seriously delayed because of litigation by opponents. No further details of the proposals were available at the time of going to press. The principal environmental legislation is the Environmental Protection Agency Act 1992 which introduced an integrated approach to environmental control, and established an advisory and standard setting role for local authorities.

3.6.2 An Bord Pleanála This Board was established in 197626 as a planning appeals Board. All political parties at the time agreed that an independent tribunal should deal with appeal decisions in an area as controversial and sensitive as land development. Today, the Board is a specialised body with quasi-judicial functions, consisting of specialised planning/environmental personnel. An Bord Pleanála makes decisions based on strict statutory guidelines, and may utilise site visits and oral hearings in its deliberations. It is independent of central government, and this is an important distinction with the merits appeals system in England and Wales. The Chairman of the Board27 stresses that: “There is no political interference in decisions by the Board in individual cases. 25

There is relatively little literature on environmental and planning law in Ireland, but a comprehensive and up-to-date source is Yvonne Scannell’s Environmental and Planning Law (Dublin, Academic Press) 1995 (reprinted 1996). 26 Local Government (Planning and Development) Act 1976. 27 PG Duffy, Introduction to An Bord Pleanála (1999)

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Under section 14 of the 1983 Planning Act, it is unlawful to communicate with any member of the Board for the purpose of influencing improperly his/her consideration of an appeal or a Board decision. There are also legal obligations on members and employees of the Board to declare certain interests. The Board’s procedures are such that no single person, be it Board member, inspector or other staff member can ensure what the Board’s decision will be in a particular appeal. The quorum for the Board meeting is three members and all members normally attend a Board meeting where a particularly complex or sensitive case is involved.” Appointments to the Board are made by the Minister on the nomination of various interest groups. The Chairman is appointed by the Government from a list of candidates selected by an independent committee in accordance with section 5 of the 1983 Act, chaired by the President of the High Court. The Government is generally required to make the appointment from among not more than three persons selected by that committee and found by them to be suitable for appointment. The Chairman of the Board normally holds office for seven years and may be reappointed for a second or subsequent term of office provided he or she is Chairman at the time of the re-appointment. The 1983 Planning Act provides for the appointment of 5 other members of the Board. Four of the members are appointed by the Minister for the Environment and Local Government from among persons selected by four groups of organisations prescribed by Regulations and representative of professional, environmental, development and general interests. The other member is appointed by the Minister from among the officers of the Minister who are established civil servants. These members normally hold office for a term of five years and may be re-appointed for a second or subsequent term provided that the person concerned is an outgoing member at the time of the re-appointment. The 1998 Planning Act makes special provision for the appointment of additional members, where the intake of cases justifies such an increase, and that power was exercised in 1998 and 1999 to bring the membership of the Board up to nine, including the Chairman. Although the Minister may establish a general policy framework for planning and development, within which the Board is expected to work, this must be done by way of published statements and not by way of any exercise of influence in relation to individual cases28. The jurisdiction of the Board is closely comparable with that of planning inspectors in England and Wales. It has power to determine issues arising under planning legislation (such as whether a proposed activity constitutes “development” requiring planning permission), and to hear appeals against decisions taken by local authorities granting or refusing planning permission or imposing conditions, and on matters such as tree preservation orders, revocation or modification of planning permission, conservation orders and discontinuance orders.

28

Local Government (Planning and Development) Act 1982, s.7(3).

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The Board has also jurisdiction in relation to certain environmental permits in the case of appeals against local authorities’ decisions for certain discharges to water and the atmosphere. But this has proved to be a limited extension of its powers. When integrated pollution control was introduced in 1993, the licensing function was given not to the local authorities but to the Environment Protection Agency, and no right of appeal was established against its decisions29. IPC will in due course absorb much of the environmental permit-granting jurisdiction of local authorities, with the result of a diminution in the significance of the Board’s environmental jurisdiction. 3.6.2.1 Planning appeals procedure Any person may appeal to the Board against a decision of a planning authority on a planning application and certain other matters30. The right of appeal is not restricted to the applicant. Third parties may also make appeals. The proportion of such appeals is growing and in 1997, third party appeals represented 42% of determined planning appeals. Appeals must be received by the Board within one month of the decision of the planning authority. This is a strict statutory time limit and the Board has no discretion to accept late appeals. Every appeal must be made in writing, and include:  The appellant’s name and address.  The subject matter of the appeal, in sufficient detail to enable the Board to readily identify the application the subject of the appeal.  The full grounds of appeal and supporting material and arguments. The Board is not permitted to take into consideration any grounds of appeal or information submitted after the appeal except information specifically requested by the Board.  The correct fee. At present, the normal fee is IR£120 but for an appeal relating to a commercial development, lodged by the applicant for planning permission, the fee is IR£300. The planning authority are required to keep available for public inspection at its Planning Department offices  the complete application and any additional information supplied by the applicant,  its own reports on the application,  its decision and notification of this to the applicant. The planning authority file will remain open for public inspection until the appeal is decided.

29

In the case of a planning application which relates to development comprising or for the purpose of an activity in relation to which a licence under the Environmental Protection Agency Act 1992 Act has been granted or is or will be required, section 98(1) of that Act provides that “An Bord Pleanála shall not consider any appeal made to it against a decision of a planning authority in respect of such an application, or any other submissions or observations made to it in relation to any such appeal, so far as the appeal, or the submissions or observations, as the case may be, relates or relate to the risk of environmental pollution from the activity”. Accordingly, matters relating to the prevention, limitation, elimination, abatement or reduction of environmental pollution from the activity are excluded from consideration at oral hearings, as are any matters which may possibly be contained in any environmental statement lodged with the application. 30 Information drawn primarily from the Board’s website at http://www.Pleanála.ie/howto.html.

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Where an appeal has already been made, another person can become an “observer” and make submissions or observations on the appeal. A copy of the appeal can be seen at the Planning Department office of the planning authority. The time limit for such submissions or observations is one month from the receipt of the appeal by the Board, or, in the case where an Environmental Impact Statement has been submitted, within one month of when the Board publishes notice of its receipt. A fee (IR£36) must be paid to the Board with any such submissions or observations (except in the case of certain prescribed bodies). Should the appeal be withdrawn by the person who made it, the decision of the planning authority will stand and the submission will lapse. Any party to the appeal may request an oral hearing provided the correct fee (IR£60) is paid in addition to the appeal fee. The appellant must make the request within the period for lodging the appeal but, where a party to an appeal is sent a copy of a third party appeal, he/she may make the request within one month from this date. The Board sends a copy of the appeal to the planning authority and, in the case of a third party appeal, to the developer. They have one month to submit their views. The Board will not consider any views that are late and no party is permitted to elaborate on the views they have put in writing once they have been submitted to the Board. Where the Board considers it appropriate in the interests of justice, it can ask any party or observer to make further submissions or observations on any matter that has arisen on the appeal. This will allow the Board, for instance, to seek comment on any significant new matter arising in the appeal. The Board also has powers to require any party or observer to submit any document, information etc. which it considers necessary. The Board will specify a time limit (minimum 14 days) for submission of the invited material and this limit will be strictly enforced. 3.6.2.2 Hearings procedures Much of the Board’s casework is disposed of on written representations. There is, however, power for the Board to order an oral hearing, to be conducted by an inspector. This it will do only where of the opinion that it will assist the Board’s understanding of a particularly complex case, or where significant national or local issues are involved. The hearing is designed to allow further necessary elaboration, discussion and examination of relevant planning issues over and above the written appeal submissions. There are rights of appearance for the applicants, the planning authority, the appellants (if not also the applicants), and any “observers” (i.e. any persons who have made submissions or observations to the Board under section 8 of 1992 Act). Any members of the public may attend a hearing and may also be heard by the inspector if he considers this “appropriate in the interests of justice” and subject to payment of fees required under the 1994 Regulations31. The Inspector will assist inexperienced persons who are appearing in person. 31

This is an interesting limit on participation rights, and it derives from a distinction drawn in the regulations. The Board’s advice is that, if a public representative writes to the Board making an enquiry as

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The Regulations32 provides that the Inspector conducting an oral hearing “shall have discretion as to the conduct of the hearing and in particular shall (a) conduct the hearing without undue formality, (b) decide the order of appearance of relevant persons, (c) permit any relevant persons to appear in person or to be represented by another person”. For small attendance hearings, the proceedings are usually informal. In larger attendance hearings, a relatively greater degree of formality will be necessary. In such cases, the order of speakers is determined by the Inspector. The advice offered by the Board on the conduct of inquiries bears strong similarities to that prevailing in England and Wales: the Inspector will strongly encourage participants to be brief, where possible, and avoid repetition; the Inspector may question the relevance of certain lines of evidence or limit arguments or submissions in relation to particular topics; where a significant number of observers are likely to express similar views, the Inspector may request that they combine to be represented by one or two spokespersons. After the hearing, the Inspector will make a report (including a recommendation) to the Board. Copies of this report are available for public inspection and purchase (excluding photographs) at the Board’s offices, three working days after the Board's decision is made. 3.6.2.3 Criteria for determining appeals The Board is normally required to determine matters de novo, as if the application had been made to them in the first place. This means that it operates within the same legislative framework as the planning authority. It is required to consider the proper planning and development of the area; and, like the planning authorities, to have regard to policies and objectives of the Government or any Minister insofar as they may relate to their functions. The development plan is not legally binding, either on the planning authority or the Board. They may depart from the plan, though in practice this is uncommon. This potentially creates problems in a fast-growing economy like Ireland’s, but the Board’s approach where policy on economic development and job creation is a material to the position of an appeal or requesting the speeding up of the processing of an appeal or simply supporting the appeal in general terms without elaborating on the grounds of the appeal or on a submission by an observer, a fee is not payable. The bulk of correspondence received by the Board from the public representatives falls within these categories. When, however, a public representative sends a letter to the Board and the Board considers that the letter elaborates on the grounds of appeal or on a submission by an observer or raises a substantive new issue, the letter is regarded by the Board as constituting a formal submission. In that event, the Board will not consider the letter unless it is accompanied by the current fee (presently IR£36). 32 Planning Regulations 1994 (S.I.86), art. 75.

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consideration in an appeal, is to refer to these factors in its decision but allow them to become a material consideration in exceptional cases only. The Board has regard to the principles of sustainable development and it tries to strike the appropriate balance between environmental and economic considerations in determining appeals. Decisions are given in writing, and include a statement of reasons. The Board has discretion to dismiss an appeal where it is satisfied the appeal is vexatious, frivolous or without foundation. The Board can also declare a planning application or appeal withdrawn where it is satisfied it has been abandoned. 3.6.2.4 Time limits The Board’s objective is to dispose of appeals within 4 months. However, where the Board does not consider it possible or appropriate to reach a decision within 4 months (e.g. because of delays arising from the holding of an oral hearing), it will inform the parties of the reasons for this and must say when it intends to make the decision.

3.6.3 The High Court The Board’s decision is final and may only be challenged by way of judicial review in the High Court, within 2 months. The Court only gives leave to pursue the review process where it is satisfied that there are substantial grounds for contending that the Board’s decision is invalid or ought to be quashed. During the three-year period 1995/97, there were only three successful legal challenges to Board decisions by way of judicial review. Ireland has a liberal attitude to standing in planning and environmental matters. Whilst more developed for planning matters, standing also is available outside the “proprietary interest” category in environmental matters. Although the High Court rules specify the need for a “sufficient interest” in order to obtain leave for judicial review, this has not been a barrier for third parties, especially given the Supreme Court description of the development plan as “an environmental contract” with the community33. Leave remains a matter of judicial discretion, but has rarely been denied in such cases. In the event of the failure of the substantive action in the High Court, a right of appeal on a point of law lies to the Supreme Court. All enforcement of environmental legislation is via the general court system. Injunctions, and other interim orders, are generally a matter for the High Court, although under 1994 legislation, the Circuit Court has been empowered to grant injunctions specifically in planning control cases. Any person, whether or not personally affected, may apply for such an order, making each citizen effectively “a watchdog of the public”.

3.6.4 The scenarios Scenario 1: the highway proposal

33

Attorney General (McGarry) v Sligo County Council [1991] 1 IR 99, per McCarthy J.

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A motorway of this size in Ireland would constitute a project of national significance. It would be categorised as a “national road” under the Roads Act 1993, and responsibility for it would lie primarily with the National Roads Authority (unlike local roads, which are under local authority control). The Authority has special powers in developing the road network. It is exempted34 from the need to obtain planning permission under the 1963 planning legislation for the route. However, the scheme will be subject to environmental impact assessment35, and the responsibility for preparing the environmental statement will rest in this instance with the National Roads Authority. Local authorities are obliged under the 1993 Act to comply with National Roads Authority requirements, even where this contravenes their development plans. Ultimately the decision whether to proceed will be taken by the Minister for the Environment, who must publish notice of his decision. The Authority (and the Minister) are obliged to take certain matters into account36, and any failure to do so may be the subject of judicial review. As planning permission is not required, there is no appeal to An Bord Pleanála. Scenario 2: manufacturing facility on greenfield site Zoning issues have also generated considerable recent controversy in Ireland, in light of the conflict between the rapid economic growth and planning control. Application for permission is made to the local authority, and it may initially issue in outline form. For greenfield sites, it is likely that a large amount of discretion will lie with the local authority, as area zoning under the development plan is not binding in a legal sense. In the preparation of the plan, there tends to be less by way of public participation and consultation than in most other European systems. The plans tend to be more in the nature of general framework documents. Depending upon the size of the proposed plant, environmental impact assessment may be required. All environmental statements must be forwarded to the Environmental Protection Agency for its comments, which the local authority must take into account. The proposed emissions will also require licence applications under the relevant air and water legislation. Both are obtained from the relevant local authority. Controls over the former are contained mainly in the Air Pollution Act 1987. Appeal lies against a decision to grant a licence, and against any conditions attached to it, to the An Bord Pleanála in the first instance. The legislation applies the test of “best practicable means”. The water provisions are contained mainly in 1977 and 1990 legislation, and will require a similar licence from the local authority, with parallel appeal structures. In due course, the two licences may be combined in an integrated pollution control (IPC) licence granted by the Environmental Protection Agency (EPA), which was created in 1994. It is intended that in future this will be the only option but at present there are still two systems, and the IPC processes apply only to “scheduled activities”. 34

Roads Act 1993, s.304. Ibid, s.50. 36 Roads Act 1993, s.22. 35

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Scenario 3: breach of discharge consent Enforcement of environmental and planning law is primarily the responsibility of the local authorities, although the process has suffered in the past from a lack of adequate expertise at the local level. The Minister has power to transfer such functions from the local authority or agencies to the EPA, and it seems likely that many of these functions will be transferred. Enforcement powers in relation to scheduled (for IPC) activities have now been transferred to the EPA by the Environmental Protection Agency Act 1994. However, there is a wide-ranging right for citizens to seek civil orders to secure compliance with environmental controls. Any person, whether or not affected by a breach, may seek an order mitigating or remedying the effects of pollution, under the air, water or EPA legislation by taking an action at District, Circuit or High Court level37. In addition, any party may apply ex parte to the High Court for an injunction to prevent such discharges, or seek a High Court order to prohibit any emission not in compliance with its consent limits. The local authority may issue a notice compelling compliance with the terms of the plant licence, and is empowered to seek court assistance in such enforcement. The EPA has power under its 1994 Act to seek enforcement, or to ensure that the local authority is properly carrying out its functions in this area. There is also the possibility of civil action at common law for those who can demonstrate damage. Both the structure and content of the law reflect English tort law. Under section 20 of the Water Act 1990 there is a further civil remedy for injury, loss or damage to person or property, which requires no proprietary connection whatsoever. At a purely administrative level the possibility exists of applying to the local authority, in relation to a process that remains within their remit, to have the terms of the licence reviewed. Such a review is obligatory every three years but may take place more often in specific circumstances, and there is a right of appeal against the authority’s decision to An Bord Pleanála. Under such a review the Board is obliged to take account of certain listed matters but there is no requirement for it to issue reasons for its decision. In practice, there are few such applications.

Scenario 4: toxic tort The regime for so called toxic torts does not differ greatly from that in England and Wales. The main possibilities lie in the torts of negligence and nuisance (where physical injury results from the nuisance). The difficulties in proving causation and foreseeability were explored in the leading Hanrahan case in the late 1980’s where the plaintiff succeeded in an action against the chemical company Merck, Sharpe and Dohme. The procedure commences in the civil courts, most likely in the High Court for any substantial actions, and an appeal may lie to the Supreme Court on a point of law

37

Act 1997, s.10.

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(although leave is required for this step). In addition, there is statutory civil liability for emissions which cause injury, loss or damage38. A major hurdle in such a case is access to adequate information to meet the burden of proof. In recent years a full range of obligations to record this information has been imposed on local authorities. This includes the maintenance of air registers, the monitoring of standards and ensuring that serious breaches are recorded. The EU Directive on public access to environmental information was transposed by regulations made in 1993, which require public authorities and certain other bodies to release information, on request, within a prescribed time scale.

Scenario 5: 100 new dwellings on greenfield site Zoning issues have aroused much recent controversy in Ireland, and a number of scandals have resulted in Dublin where the demand for new housing land has been greatest. The problem arises primarily from the extent to which land use planning is a matter for the local authorities. They retain the power to determine whether a particular application for planning permission should be allowed to contravene materially the existing development plan. The special procedure allowing for deviation from the development plan is frequently used. While it is true that the planning process affords many chances for public intervention and challenge (see scenario 2 above), the decision rests ultimately with the elected members of the authority. In a number of cases their decisions have been challenged, first by third-party appeal to An Bord Pleanála where the merits are reviewed by de novo hearing, and then through judicial review to the High Court. The matter is complicated by the Irish constitutional right to private property (and development of that property) and the relationship between this and the First Protocol to the European Convention on Human Rights39. The proposal may also involve an EIA. Full consideration of the environmental statement must be given by the granting authority. This will form part of the planning process rather than constituting a separate exercise.

Scenario 6: the domestic garage There are a number of building projects which may be categorised as “exempted development” under the 1963 planning legislation, and therefore free from the need to apply for planning permission. Structures within the curtilage of a dwelling house, such as garages, may be included in this category. However, following the High Court’s ruling in Murray v Buckley, very detailed regulations, made in 1994, now specify a floor area limit on any exempt garage structure.

38

Air Pollution Act 1987, s.28(b). See eg Pine Valley Developments Ltd v Republic of Ireland 14 EHRR 319 (1991), and the preceding domestic litigation: State (Pine Valley Developments Ltd) v Dublin County Council [1982] ILRM 169; Pine Valley Developments Ltd v Minister for the Environment, Ireland [1987] ILRM 747. 39

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If a question arises as to the definition of “exempted”, a right of appeal lies to An Bord Pleanála in the first instance, and from there to the High Court. However it has also been held that the High Court may assume original jurisdiction on the point, where an issue of enforcement of the regulations arises under section 27 of 1976. While there is no specific provision for third party standing (e.g. for neighbours), it has been freely available in practice.

Scenario 7: objections to local plan Every local planning authority is obliged to prepare a Development Plan for its area which must be reviewed every 5 years. These are in practice rather loose documents. However there is a full consultation procedure before adoption, and any subsequent material contravention of the plan, such as might occur in this scenario, must be publicly notified, with sufficient time for appeals against such contravention. Appeals against this practice go to An Bord Pleanála. In reality the real controversies in Irish planning law are reserved for later in the process, once a developer makes an application for planning permission.

Scenario 8: proposed international airport Any such proposal would be an issue of national importance in Ireland. The matter would proceed through the normal planning permission channels. It would, under the 1989 regulations transposing the EC Directive, require EIA and a public inquiry would be required. The environmental statement must be prepared by the developer, detailing precisely the likely impact of the development on the environment, following certain guidelines from the statute. At the public inquiry the liberal Irish standing rules would enable a range of third party objectors, including of course environmental associations such as An Taisce (the National Trust for Ireland), to be heard. Merits appeals against the decision of the authority lie to An Bord Pleanála.

3.6.5 Summary The Irish experience is of particular interest to our study. It is a common law jurisdiction, implementing European environmental directives, and with a land-use planning system modelled closely on the British legislation. Yet there are some significant differences. There is a specialised appeals tribunal in An Bord Pleanála, which operates like a tribunals Planning Inspectorate except that it is wholly separate from Government. It accepts third-party appeals, which now make up a significant proportion of its business. It bears many of the hallmarks of an environmental court that we identified in Chapter 2. It has expertise in its composition, and is able to achieve flexibility and informality in its proceedings.

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But the major distinction is the limited character of its jurisdiction. It has no civil or criminal jurisdiction (including no role in enforcement); and it has a declining, rather than a developing, jurisdiction in environmental merits appeals. Indeed, it has no jurisdiction in relation to environmental impact assessment. It is a planning appeals tribunal, rather than a broader environmental body, and its jurisdiction is thus considerably narrower than that of planning inspectors in England and Wales.

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3.7 Germany 3.7.1 General principles With just two exceptions, environmental law in Germany is a branch of administrative law. The exceptions are the civil law of environmental liability, and criminal environmental law. The emphasis of the administrative law system is on the protection of subjective rights (by comparison with the French emphasis on objective legal control), and this results in certain distinguishing characteristics. For example, there is a high threshold for standing, but once it has been surmounted, the courts are willing to exercise comparatively intensive supervision of administrative decisions. Germany has developed three leading general principles of environmental law: the precautionary principle (Vorsorgeprinzip), the polluter pays principle (Verursacherprinzip) and the cooperation principle (Kooperationsprinzip), which is mainly applied in the procedural law by the involvement of standards committees which seek to involve the wider public in environmental protection40. Environmental law is a matter for the Länder rather than the federation, but there is a federal environmental ministry and a federal Environmental Agency. Wide-ranging environmental legislation has developed in Germany over the past 20 years. As has been common in the development of environmental law elsewhere over this period, there has been considerable fragmentation, in that different laws relating to different sectors have developed different definitions, systems and approaches.

3.7.2 Administrative system The principal function of the Federal Ministry of the Environment is to promote laws and administrative provisions to protect the environment. It is the Länder which then bear full responsibility for implementing them. The Länder also have responsibility for monitoring compliance with statutory requirements and other official obligations. The Länder have a participative role in the formulation of federal environmental protection laws and ordinances via their representatives in the Bundesrat (the Upper House of the German Parliament), and are therefore important partners of the Federal Environment Ministry. It is recognised as a basic principle of German environment legislation that the Länder have the right to legislate unless the Basic Law provides otherwise. But there are some important exceptions, where the Federal Government has the exclusive right to legislate, in the case of international affairs and bilateral and multilateral agreements. There are also instances of concurrent legislative power, where the power is shared between the Federal Government and the Länder. The right is reserved to the Federal Government if there is a need for a nationwide provision, and Federal law in such 40

See further Nigel Foster, German Law and Legal System, London. Blackstone Press 1993, 149

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instances overrides Länder law. The following areas are subject to concurrent legislative powers:  waste management  air pollution control  noise abatement  radiation protection  chemical safety The allocation of responsibility is outlined in Table 1. Table 1: German allocation of environmental responsibilities Federal Federal Government / Government Länder Sole legislative > Competing Federal law power: > legislative supersedes International > powers: Länder law affairs; waste disposal >>> development of procedures; the EC; air quality bilateral and control; multilateral noise treaties abatement; radiation protection; chemical safety

Länder

Local Authorities

Responsibilities of the Typical environmental Länder: responsibilities of the local granting of licences for authorities:  the construction and  project and agricultural operation of industrial planning sites, power plants, landfills and  street cleaning waste treatment plants  water supply  the transportation of special waste  waste water disposal  discharge of sewage into rivers, streams  expansion of waste and drains recovery

CHAPTER 3: ENVIRONMENTAL DECISION-MAKING IN SIX JURISDICTIONS Federal Federal Government / Government Länder Sole legislative > Competing Federal law power: > legislative supersedes International > powers: Länder law affairs; waste disposal >>> development of procedures; the EC; air quality bilateral and control; multilateral noise treaties abatement; radiation protection; chemical safety

Framework legislation Water resources; nature conservation; landscape conservation

Länder

95

Local Authorities

Responsibilities of the Typical environmental Länder: responsibilities of the local granting of licences for authorities:  the construction and  project and agricultural operation of industrial planning sites, power plants, landfills and  street cleaning waste treatment plants  water supply  the transportation of special waste  waste water disposal  discharge of sewage into rivers, streams  expansion of waste and drains recovery

Concretisat  ion and  implementa tion >>>   



fixing of rates establishment of reporting and measurement stations the carrying out of monitoring and control activities the compiling of emission and emission registers the designation of air protection zones, Nature and Landscape Reserves and water protection areas the punishment of offenders

      

rehabilitation of abandoned waste sites rehabilitation of old sewerage systems abatement and prevention of noise implementation of nature conservation and preservation of landscape measures monitoring of the environmental impact of the energy supply citizens advice, environmental help line

Source: adapted from German Federal Ministry for the Environment, Nature Conservation and Nuclear Safety, 1998.

3.7.3 Federal Environmental Agency The Federal Environmental Agency (Umweltbundesamt, UBA) provides support to the Federal Environment Ministry, in particular at a scientific and technical level in the fields of air pollution control, noise abatement, waste and water management, soil protection and environmental chemicals, and especially in the drawing up of statutory

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and administrative provisions. Its functions include services and assistance in the environmental research undertaken by the Federal Environment Ministry and the coordination of the Federal Government’s environment research, together with the compilation of environmental data and responsibilities in connection with the implementation of the soil protection programme and cleaning up contaminated land.

3.7.4 Reforms: towards an environmental code In 1992 the Federal Government commissioned a major project for review of the country’s environmental law, with a view to the promulgation of a new environmental code, in response to concern about the fragmentation of environmental law between measures such as the Federal Emission Control Act, the Federal Nature Conservation Act, the Federal Water Act, the Atomic Energy Act and the Chemicals Act. The Commission reported in 199741, and its report draws together the key provisions of the existing law into a comprehensive environmental code which sets out to harmonise, simplify and update them. Hence, the draft code provides an integrated set of environmental measures, and is expected, through its simplification of requirements, to effect some deregulation in regulatory practice. The Commission’s draft is divided into a general section and a special section: 

The general section, comprising eight chapters, summarises the cross-sectoral and general legal principles of environmental legislation, and puts these into a more manageable format. It also proposes cautious improvements, for example, in the section on the fundamental principles of environmental protection, containing guidelines for sustainable, environmentally compatible development. The work restates the environmental responsibility of individuals, and points out that each bears their own responsibility for protecting the environment. The draft emphasises the environmental obligation of ownership, which means that landowners are only entitled to use natural resources and interfere with nature and the countryside provided the requirements for lasting protection of the natural foundations of life are met. A key element of the general section concerns the provisions for integrated project approval.



The special section comprising nine chapters, contains special regulations on individual environmental media and environmental influences: Conservation, species preservation, countryside maintenance and woodland protection, soil and water conservation, emission control and energy supply, atomic energy and radiation protection, traffic and transport facilities, genetic engineering and other branches of biotechnology, hazardous substances, and waste management.

In agreement with the Federal Environment Ministry, the Commission believes that the chapter on integrated project approval, within the context of the first volume of the 41

Environmental Code Draft prepared by the Independent Expert Commission on the Environmental Code at the Ministry of the Environment, Nature Conservation and Nuclear Safety of the Federal Republic of Germany. 1998

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Environmental Code, should be used to translate the EU Directive on Integrated Prevention and Pollution Control (IPPC directive) and the Directive on Environmental Impact Assessment (EIA directive) into German law by 1999, in accordance with the provisions of EU law. It has created a uniform basis for the review and approval of major projects with environmental relevance, such as industrial installations and landfill sites. Implementation of the remainder of the report’s proposals will take longer to bring about, but it is intended that they will result eventually in a new environmental code.

3.7.5 Environmental litigation in Germany The Report does not make any proposal for the establishment of an environmental court in Germany. This is significant in itself, because the potential constitutional limitations on establishing such a jurisdiction that exist in France and Italy are not present in Germany. Specialist courts are more common there already than in France: there are, for example, specialist labour courts, social courts, revenue courts and finance courts. The present arrangement is that any dispute which arises from an administrative decision, including the grant or refusal of permits for planning or the use of natural resources, and which may affect a person’s rights, may be challenged before the administrative courts. At the heart of these process is the character of an administrative decision. Special rules relate to its preparation, form and effect. Any administrative decision may be challenged by judicial review, provided the applicant has first exhausted the required administrative procedures. The first step is to file a formal complaint (Widerspruchsverfahren) in which the complainant states the objection to a committee (BeschwerdeausschuB) and the public authority can review its action. This provides an opportunity to attempt to settle things at an informal level. The public authority involved must then provide a formal reply or pass the complaint on to a higher administrative authority who will issue the reply. This must give reasons for the decision and note the remedies available. If the authority then confirms its decision, the complainant has one month in which to file a court action. The legality of the decision may be challenged on the grounds of the authority’s formal competence (the authority has gone beyond its powers), procedure and substance. Hence it includes all defects in substance: challenge is not confined to matters of law but extends also to the factual content of the decision. Challenge is in the administrative courts, where proceedings are less formal than in the regular courts. The courts operate at three levels: The Verwaltungsgericht: this is comprised of three professional judges and two lay judges; appeals lie from there to: The Oberverwaltungsgericht: there are ten of these courts in West Germany, sitting in senates of three professional judges, and in some Länder the composition also includes two lay judges, because appeals lie in fact as well as law. There is a restricted final appeal on law only to: The Federal Administrative Court: this is based in Berlin and is composed of five professional judges.

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3.7.6 Locus standi The draft Code pays special attention to the distinction traditionally drawn in German environmental legislation between different categories of administrative decision: “Of particular importance in this connection is the basic distinction between averting dangers and taking precautions against risks. Provisions on averting dangers are considered to aim at protecting third parties. Neighbours may bring actions for compliance with them. If dangers are imminent, the administrative authorities are obliged to take action against the originator. Provisions on precautions against risks, on the other hand, are considered to protect the public at large, but not third parties. For example, neighbours cannot bring an action for compliance with the basic duty of Art. 5, para 1 no 2 Federal Immission Control Act, which obliges the operators of installations to act in a precautionary manner by minimising emissions in accordance with the best available technology. Under existing law, the strict requirements regarding right of action and violation of rights means that compliance with provisions on precautions against risks and with provisions on nature conservation (which are not regarded as protecting third parties) are only subject to very limited control by the courts.”42 The draft Code proposes an extension of public rights, so that third-party actions would be possible, to sue for compliance with precautionary limit values, the exceeding of which might affect them; and similarly in respect of precautions against major accidents. It also proposes a national basis for allowing legal action in relation to nature conservation by associations (which previously has existed only in some of the Lander), and a special right for an industrial competitor to bring and action against administrative tolerance of competition-distorting infringements of the law by their competitors43. As to environmental associations, the proposed Art 45 of the Draft Code would confer a general right, without having to prove any infringement of its own rights, on a recognised association, to apply for an administrative court review of the legality of administrative measures or omissions, but only so far as the provisions concerned: 1. are intended inter alia to serve the interests of nature conservation or landscape management, 2. are to be taken into account in an authorisation pursuant to Art 570, or 3. serve to protect the environment and must be taken into account in a project authorisation pursuant to Art 81 para 3 or in the preparation of public land-use plans. This is a right to substantive, not merely procedural review44. If the association has had a right of participation in the administrative procedure, it would be precluded from raising 42

Op cit, p.56. Op cit, p.64. 44 The right would be without prejudice to the association’s entitlement to bring an action on the grounds of 43

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before the court any objections it could have made then on the material available to it then.

3.7.7 Enforcement Enforcement is usually commenced by a complaint notice sent to the offending company, followed in default by official orders requiring the company to stop or to close down the facility completely. Orders are subject to judicial review in the administrative courts, to which general administrative law rules apply but also special rules. For example, there is a relaxation of locus standi requirements for third parties and citizens or associations, who have the right to object to an administrative decision and to obtain an administrative hearing. The specific laws grant either every citizen, or the citizen whose interest is concerned, the right of participation. For example, persons living in the area of an industrial establishment are granted a general right of participation in the administrative processes relating to authorisations. Environmental litigation in Germany is normally taken through the administrative and criminal systems, with only a small proportion going through the civil process. There are heavy criminal penalties for more serious breaches of the environmental code, and the general requirement is that the fine should exceed the offender’s financial gain45. These carry a range of fines and prison sentences, and prosecution is reserved to the exclusive prerogative of the government authorities.

3.7.8 The scenarios Scenario 1: the highway proposal Several issues are raised by this scenario, and different rules apply depending on whether federal or state (Länder) roads are involved (although the tighter federal approach to the implementation of framework laws emanating from the centre in recent years may mean that the requirements are virtually identical). On the assumption that this project is categorised as federal, the administration will be federal but may be entrusted in practice, under close supervision, to the local Länder. The Federal ThroughRoads Law (which may also act as a financial instrument) requires the existence of a developed road plan at both levels, but individual authorisation will be required for each project. Prior to such approval issuing, a complex procedure is undertaken, involving the formulation of a “traffic route plan” and a “line determination” by the federal government, and territorial planning by the Länder. This latter process involves consideration both of the impact on individual communities and the economic, social and cultural effects of the plan in the wider context. The plan approval authority is obliged to consider suitable site allocation from a local level, whereas the federal

infringement of its rights of participation, though such an action would not succeed if it is obvious that he infringement had no substantive influence on the decision, or the error can be remedied by a supplementary procedure (draft Art 45(3)). 45 Administrative Offences Act, Art, 17, para 4.

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approach is more concerned with mapping out the most efficient route between two major centres. Highway plan approval overrides requirements for other media-related consents, although it remains bound by the principles of those sectoral laws. Plan approval is still obliged to involve a balancing of all private and public interests, and such approval will be legally binding. The procedure is therefore subject to general administrative law principles and process. The organisation proposing the project must submit an application to the approval/hearing authority, and then await the conclusion of a process which includes time for public complaint/objections and a scheduled hearing. Much emphasis is placed on consultation at this stage. After this, a position will be adopted. In the case of federal highways the appropriate body is usually the highest road construction authority of the land involved, generally the Minister for the Environment and Physical Planning. EIA is required for such construction, most importantly in the “line determination” stage described above, and at the final plan approval stage (if such items have not been covered in the earlier EIA). A number of options are available for challenge by aggrieved persons. There may be, in exceptional cases, a violation of constitutional rights, although given that the Basic Law does not provide a specific right to a decent environment, such a claim would need to be founded on some other positive constitutional right. More common is an approach through the administrative courts, on the grounds of failure of the plan approval authority to give adequate consideration to the circumstances, either in compiling the local plan (which is either the preparatory or the binding local use plan), or in administering the consultation process. An action to quash may succeed if the act is found unlawful by reason of its failure to protect the individual rights of the plaintiff (standing is further examined below). The court will consider the adequacy of the authority’s weighing-up process. It is far more difficult to challenge matters on the merits, as the courts are anxious not to interfere with the evaluation of the planning agency, and it must be shown that a violation of the arbitrariness test took place, such as that the authority proceeded in spite of the results of an EIA. As we have observed above, the issue of standing is subject to distinct rules in Germany. A review of an administrative decision like this could be demanded by third parties only so far as the environmental provisions protect third parties individually. Otherwise, the only person with standing would be an individual whose property was being compulsory acquired. Following reunification of East and West Germany, special rules46 were introduced to speed up the planning of major transport links between the two. The usual approval procedures were superseded by a special fast-track system, under which environmental assessment requirements are observed, but approval is undertaken directly by Parliament, with no other approval requirements. 46

The Verehrswege-Planungs-Beschleunigungsgesetz.

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Scenario 2: manufacturing facility on greenfield site There is a basic freedom to build (based on Constitutional private property rights) contained in German law, but heavily qualified by the notion of the social responsibility of property ownership. Planning is important in German environmental law. The Expert Commission observed that: “The planning of land-use and especially zoning regulations has a longer tradition and a greater importance in a densely settled country like Germany, and also in other European states, than for example in the USA.”47 The Expert Commission has therefore sought to bring about a better integration of environmental protection interests in Germany with regional policy, Land and regional planning, and area development planning. Zoning is primarily a Länder concern, and the developers in this scenario will have to consult the appropriate plans which are obligatory at Länder and municipal/local level. Most important are the local plans, especially the “binding land use plan”, which has direct legal consequences, and which will exist for most areas in which any development is likely. In theory, no discretion is left to the local body following the extensive consultation procedure undertaken for the adoption of such plans. The policy framework for the plans is prescribed at Federal level, and both Länder and local plans are required to conform generally to the plans immediately above them. The Land Use Regulations deal with the 10 categories of land use or zones, and lead to tight restrictions on the type of development permitted in that zone. Local authorities are obliged to review these zoning areas regularly, and may be legally challenged for any failure to do so. This review process must consider the “Bauleitsplane” (principal building plan), which will include environmental considerations and is adopted only after an extensive consultation and balancing exercise. The developer is obliged to apply, in the first instance, for a building permit, which deals with both the formal and material elements of the law. Again this is a local function, and it is noteworthy that rejection rates are very low, due mainly to the prolonged consultation process prior to application. Extensive consultation takes place with developers and others potentially affected, and enforcement of these permits is very strict. Nonetheless, some flexibility is to be found in Sections 34-35 of the BbauG (the federal building law) which deal with areas (including those on the urban periphery) for which no binding plan exists, and where development can be permitted in the absence of conflicting public interest. The local authority has some discretion in such a situation, and this may relieve the strictness of the plan-led system. The building permit also deals with issues such as the materials to be used in construction and related issues of occupational health and safety. The project may merit, depending on size and nature, an EIA under the provisions of the EIA Act implementing the EC Directive of 1985, and this can prolong the procedure. 47

Op cit, p.65.

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The next issue facing the developer is consent for emissions to the atmosphere and to surface waters. The German approach remains primarily sectoral, despite the possibility of an integrated licence covering both emissions. In both cases the local Länder is the authority responsible for granting licences, although in reality federal legislation leaves little room for discretion in implementation. In addition the authority may seek advice from a number of special federal agencies, such as the Accident Commission and the Technical Committee for Plant Safety—which also standardises the approach throughout the country. The Federal Pollution Control Act is of central importance in deciding the criteria for granting a licence for air emissions, and the Water Act is also of federal origin. With the former, the permit application must be accompanied by extensive documentation and considerable time is allowed for objections. Again, the authority’s decision must be published providing reasons. For water discharges the process is similar, but two types of licence are available depending on the nature and volume of the discharge, and these are categorised as revocable or irrevocable, depending on the nature of the proposed discharge. The latter may be issued only after proceedings which allow for objections, including third party objections on grounds of the public good.

Scenario 3: breach of discharge consent Problems with outdated technology have been acute in Germany, and scenarios such as this raise complex issues of monitoring and public access to information. Enforcement authorities have powers to intervene by issuing follow-up orders where consultation and guidance proves insufficient, and ultimately closing down the plant if such action is appropriate and proportionate. The law provides for alternative sanctions, including administrative fines or even criminal prosecution (increasingly common) for damage to health or property. Under Section 22 of the Water Act strict liability exists for damage caused by pollution. Under the Environmental Liability Law of 1990, the possibility arises of civil law damages for injury, illness or property loss (see scenario 4 below). As regards the status of the local pressure group, it may be open to them to attempt to challenge the action (or failure to act) of the authority, on the grounds of the effect on members of the local community. They may try to compel the authorities to issue enforcement orders or to take those more severe measures referred to above. The main avenue is again through the administrative courts. In the civil courts, those seeking compensation will be required to demonstrate that they have been personally affected by the injury. The German Criminal Code does not allow criminal enforcement by private parties. Scenario 4: toxic tort Cases involving so-called toxic torts are governed by the Environmental Liability Law 1990, which aids plaintiffs in such cases. Article 3 of the Act details those type of facilities which may be liable, and Article 6 provides a broad res ipsa loquitur type presumption where the circumstances allow. The Act establishes a reversal of the burden

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of causation when a plaintiff complains of damage arising from a listed facility with a propensity to cause such damage. The burden shifts to the defence to show that they did not cause the alleged damage. Articles 8 and 9 of the Act provide for special access for the injured party to information from both the owner of a facility and the authorities. Detailed compensation provisions are contained in the Act and the action is processed through the normal civil courts. Liability is restricted to DM160 million, and operators are legally required to have sufficient insurance cover in place.

Scenario 5: 100 new dwellings on greenfield site In theory this will be a purely municipal matter, and the response of the appropriate authority will be dictated by the content of the binding land use plan. However, as stated above, the issues are largely determined at the higher Länder or even federal level, through the federal regional planning programme. In this scenario it is likely that the proposed greenfield site would not be the subject of a binding local land use plan, and therefore an element of discretion will arise for the municipality. With open land at the urban periphery, as this probably is, it must decide where the public interest lies in granting the application for development. There is a category of “privileged development”, which the authority has only limited powers to refuse, and many cases revolve around this definition. The exercise of this discretion can be challenged in the administrative courts. Scenario 6: the domestic garage As with most jurisdictions this is really a matter for municipal concern. It should be covered in the binding local plan, but will still require an application for a building permit. There are in most municipalities a number of exceptions, which do not require a permit, but domestic garages are not generally included. Similarly, for a change of use, specific permission would be required, and extensions, etc, will have detailed guidance on materials to be used and other minor details under the BBauO (or State Building Law). Neighbours are invited to participate in the permit process, although this is discretionary in some Länder. If obligatory, plans for minor building works need to be signed by the owners of all adjacent plots. Refusal to sign will not invalidate a permit but allows that neighbour to litigate against the permit in the administrative courts. It is the granting authority which will be challenged rather than the applicant for the permit. Most applications for permits are decided by officers, but those of more significance go to a special committee of the municipal council. The refusal rate is very low due to the detailed nature of both the planning and the permit process, and the fact that extensive consultation is supplemented at the other end by very strict enforcement (by means of fines, stop notices and demolition orders). The building permit is described as the

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building block of the system, and this is reflected in the attitude of the authorities to any violation.

Scenario 7: objections to local plan All Länder are obliged under the 1965 Federal Regional Planning Act to set up statewide plans for the development of land. There are three levels involved: the Land’s own comprehensive development plan, the more detailed regional development plan and the local / municipal development plans. The regional plan is obliged by law to correspond very closely to the Land plan (which is drafted on a policy basis), and it sets out matters such as the desirable direction of development in the distribution of residential locations amongst the municipalities. The municipal land use plans must accord in turn with these plans and they are submitted to the upper levels in the executive hierarchy to ensure compatibility. Most likely this will involve the Regional Planning Board and the Land Ministry in approving the local plan at the state level. The local plan has two distinct elements: the zoning plan (a masterplan) and the binding land use plan which is more detailed and represents the operational basis for the allocation of land uses and planning control/sub-division. It has the status of a local statute and is binding on all parties. It is prepared through a major consultation process, which may take up to three years. Any attempt to expand the urban area may involve the use by the municipality of a third instrument, the urban development plan, which will contain a comprehensive programme for land use, infrastructure and demographic development. The usual consultation requirements will apply before such a plan may be adopted. Actions against binding use plans may be taken under section 47 of the Administrative Court procedure, by which any person who has suffered or will suffer disadvantage under the binding land use rule may challenge it in the administrative courts. The courts rigorously test the obligation upon municipalities, who ultimately adopt the plan, to balance and weigh public and private interests fairly. In such a case the plan may be declared null and void, with no further legal validity, and the courts have demonstrated that they are prepared to take this course where they believe the public interest has been disregarded. There is a time limitation of seven years within which such a plan may be challenged. Appeals lie beyond this decision to the higher levels of administrative court, ultimately to the federal level

Scenario 8: proposed international airport As we have seen, planning decisions are usually taken by the individual Länder in accordance with local plans. However, for a limited range of public infrastructure projects, including a major airport, planning decisions are taken by the relevant Ministry within the Federal Government. The decision follows consultation with the relevant Departments within the Länder, and the decisions are incorporated into a national sector plan (Fachplane). EIA requirements apply in the normal way, given that such a project

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with be an Annex I project within the European Council Directive. Public participation is secured through public local inquiries organised by the Länder.

3.7.9 Summary German environmental law tends to be highly specific in character and devolved in its administration. Rights of third parties are limited. There are general rights of participation in administrative decision-making, notably in relation to land-use planning, which is an important feature of environmental protection. But there are limited rights of legal challenge, from which third parties are excluded unless able to show some personal right which is affected by the matter under consideration. There is no environmental court, but a system of administrative courts with specialist expertise and wide-ranging jurisdiction to review, under a “hard look” doctrine of review, decisions taken by officials exercising policy-making and regulatory powers.

3.8 Conclusions This chapter has demonstrated a remarkable variety of different approaches to the types of functions we envisage an environmental court might have in England and Wales. It suggests that there is no general trend towards introducing such a jurisdiction in the countries we have surveyed. Except in the case of Sweden, there seems to be no desire to reform the institutions presently in place for reviewing the merits of administrative decisions on land-use and environmental matters. In particular, the countries with civilian legal systems are accustomed to relying upon the expertise and flexibility of their administrative courts for this function, notwithstanding the steady increase in workload that this has produced. It is perhaps because these courts bear the least resemblance to the traditional adversarial jurisdiction of the common law tradition that they have shown the better capacity for adaptability to the requirements of environmental dispute resolution. A significant phenomenon in the jurisdictions surveyed is the position of third parties. In all cases, there is a right of third party appeal on merits against the decisions of regulatory authorities, though it is heavily conditioned in some jurisdictions. It is a significant feature of the Expert Commission’s draft Environmental Code for Germany that it would extend these rights significantly, at least for recognised associations. Sweden’s new Code broadens public access rights; Denmark and Ireland already have generous rights.

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4 New Zealand 4.1 Introduction We turn now to the detailed case studies. These cover four Australasian jurisdictions: New Zealand, New South Wales, South Australia and Queensland, as well as England and Wales. New Zealand has an Environment Court which plays a central role in the sophisticated scheme of resource management that was introduced in the early 1990s, with the aim of securing an integrated and holistic approach to environmental protection. In this chapter, we outline the background to the creation of the Court, and examine its function within the country’s administrative framework and under the resource management legislation. It is a court of record, with its own specialist judges and a team of commissioners. It has power to resolve objections to development plans, to determine merits appeals from local authorities on environmental (including land-use) consent applications, and to make civil enforcement orders. The Judges deal with prosecutions through the District Court. The resource management legislation has proved difficult to implement, and remains controversial in terms both of its design and its effect. A major Bill for its amendment was introduced to the New Zealand Parliament in July 1999, following a lengthy (and lively) consultation process conducted by the Minister for the Environment. However, the Bill fell with the change of Government in November 1999, and it is still unclear which of its proposals may yet be reintroduced. We refer to the reform proposals as appropriate in the analysis that follows.

4.2 The background to the creation of an Environment Court The creation in 1996 of an Environment Court for New Zealand was the product more of pragmatic development than of revolutionary reform. It involved the renaming of the former Planning Tribunal, which could in turn claim direct descent, through a variety of different manifestations, from the Town Planning Board established under the Town Planning Act 1926. The Planning Tribunal had become a court of record in 1977, and it was logical to assign to that Tribunal full responsibility for environmental appeals under the innovative Resource Management Act (RMA) when that was enacted in 1991. The Resource Management Act reforms did not coincide with the “invention” of an integrated environment court structure. Such an integrated structure was already largely in place, but the RMA built on that model, and provided the Tribunal with extensive new enforcement powers.

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The first board with adjudicative functions in planning was the Town Planning Board created by the 1926 Act, which was headed by the Minister for Works and comprised other members qualified in a number of relevant disciplines. These members were perhaps the first planning commissioners, and were intended to act rather like a jury in reflecting the general community interest. The Act, like the English Town and Country Planning Acts of the same era, required all cities and boroughs with a population of over 1,000 to prepare a town planning scheme before 1930. However, none were prepared before that date, and the onset of the depression and war meant that the Act had little impact at all1. The Town and Country Planning Act 1953, which established the basis of the modern planning system in New Zealand, replaced the Board with a new Town and Country Planning Appeal Board. It comprised a legally qualified Chairman, with a number of other nominated members. The new board was really an appellate body, and its main task in practice was to oversee the planning schemes prepared and approved by the territorial councils. Planning control was pursued through a US-style zoning system, and the planning schemes established the zones and defined the rights of development which were to apply in each of them. The Board also had jurisdiction to hear land subdivision appeals and appeals in respect of decisions on water rights applications. It did not have the jurisdiction to provide declaratory or advisory judgements. In due course, the membership of the Board was extended to allow it to sit as three separate Boards on a regional basis. The next major reforms were contained in the Town and Country Planning Act 1977 (“TCPA”), which consolidated a number of earlier enactments in the planning area. It also rationalised matters to a large extent, and significantly increased the Board’s powers. The three appeal boards were recreated as three divisions of a single new body called the Planning Tribunal. These divisions were subsequently increased in number. Although called a tribunal, it was now a full court of record. Its jurisdiction was increased to allow it to entertain applications for declarations as to permitted uses and existing use rights. The chairman of each division was required to be a District Court judge. Challenge by way of appeal to the Planning Tribunal became a precondition to challenging a decision in the High Court. This was to stop the practice which had arisen of parties bypassing the Tribunal, and going directly to the High Court where it was felt that important matters would end up in any event. The Planning Tribunal appears to have been generally well regarded. Williams commented in 1985: “The creation of the Planning Tribunal was a far sighted conception and was unique to New Zealand. The performance of its members to date has resulted in the Tribunals being accorded a very high level of respect by those directly involved, the general public and Parliament itself. This is amply demonstrated by the progressive increase in responsibility which has occurred in recent years. . . Not many matters are

1

See further Bill Williams, District Planning in New Zealand NZ Planning Institute 1985.

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so well and justly handled in our society. The creation, role and performance of the Planning Tribunal may well become a model for other countries”2 That theme was picked up by Tony Hearn QC in his comprehensive review of planning and resource management in 1987, who noted that he had received no criticism of the Planning Tribunal, despite the extensive powers that it exercised3. Since then, the powers of the Planning Tribunal have continued to expand, so that its redesignation in 1996 as the Environment Court reflected two changes which had already occurred: the extension of its role into environmental as well as planning issues, which had followed the Resource Management Act 1991, and its establishment as a court of record, which dated back to 1977. Today, the Environment Court has all the powers of a court, including many of the procedural powers of a district court, which it most closely resembles. It can make a range of procedural orders, for example, and has the power to direct that amendments be made, on the merits, to regional or district policy statements or plans. It has jurisdiction to issue declaratory judgements concerning the existence or extent of any function, power, right, obligation or duty, and whether there are inconsistencies between policies. It has extensive powers to make orders requiring the cessation of activities which are in contravention of a plan, or doing anything which is likely to be objectionable to the extent that it may have an adverse effect on the environment. Failure to comply with such an order may result in a consequential order for enforcement. Such an order may be sought by any person, not only by the appropriate territorial council. The Court has no criminal jurisdiction, but its judges are also Judges of the District Court, and in that capacity are able to preside over environmental enforcement proceedings, whether criminal or civil. Though its decision are subject to appeal to the High Court on points of law, the decisions of the Court are final on matters of fact. It is a question of law whether or not any irrelevant matters or objectives were considered by the Environment Court or whether there was evidence which could reasonably support a finding of fact made or conclusion reached. There was a strong view at one time that the Court should have been elevated to the level of the High Court rather than maintained at the level of the District Court, not least because of the high stakes often involved in a planning or environmental case4. Two points are relevant to the history of the Court. The first is that central government has never had an overriding function in town and country planning in New Zealand. It has not had strong policy responsibility comparable to the British system; nor has it had any role in dispute resolution. This latter function has always been assigned to the independent tribunal, latterly the court, leaving the Minister sometimes a frustrated observer on the sidelines, able only to make public comments on judgements of the 2

Op cit, p.7. Review of the Town and Country Planning Act 1977. Wellington. Department of Trade and Industry, 1987; p. 91. 4 The Hearn Report, op cit., p 94 took the line that the role was more akin to that of the Arbitration Court than to either the District Court or the High Court. 3

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court of which the Government approves or disapproves5. This has meant that quite central policy issues, such as the extent to which the RMA was intended to supersede “conventional” town and country planning with a more flexible impact-based approach, are matters for local practice under the supervision of the court, rather than matters in which the Minister can intervene directly, save through promoting new legislation. It also means that there is a tendency to prescribe in great detail in legislation that which would, in the British context, be left to national policy guidance. Second, the general courts have played a relatively limited role in the implementation and supervision of the resource management system, largely through occasional judicial review of the decisions of the Court. There is no separate power of oversight conferred by any constitutional protection of property rights. The powers of the local authorities in relation to planning are defined by legislation, and disputes regarding them fall to the Court for resolution on questions both of law and of merits.

4.3 The Resource Management reforms The impetus for reform of the planning and environmental system commenced in earnest in the early 1980’s and is widely attributed to an OECD report in 1980, which had been highly critical of the existing institutional arrangements in New Zealand. This external criticism was also reflected in the increasingly powerful conservation movement within New Zealand at that time, which argued the need for a new environmental strategy which could not take place without institutional reform. However it was only with the change of government in 1984 that the moves for reform really took shape. These reforms were in three main related areas:

4.3.1 Central government reforms In March 1985, the new Labour government instigated a series of “environmental forum” meetings to discuss the future direction of environmental regulation, and set up a working party to advise Cabinet on the necessary reforms. Its report, Environmental Administration in New Zealand (1985) recommended a major restructuring of the government bodies operating in this area. Implementation came with the creation of a Ministry for the Environment under the Environment Act 1986, and a year later the establishment of the Department of Conservation. The Ministry for the Environment was to become the main agent for formulating and promoting the major reforms occurring between 1986 and 1992. The Ministry for Conservation was to be mainly concerned with coastal policy, marine life and wildlife conservation. 4.3.1.1 The Minister for the Environment This Minster occupies a central but not a dominant position in the New Zealand scheme of resource management. The Act confers primary powers on local authorities and the Environment Court, and reserves to the Minister only a participative and supervisory role. He or she may:

5

See eg Hon SD Upton, “Purpose and principle in the Resource Management Act”, Stace Hammond Grace Lecture 1995, p. 5.

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ENVIRONMENTAL COURT PROJECT: FINAL REPORT  recommend the issue of national policy documents,  make regulations to establish national environmental standards,  take over the resource management functions of a local authority where that authority is “not exercising or performing any of its functions, powers, or duties under this Act to the extent that the Minister considers necessary to achieve the purpose of this Act”6. The Minister must first give the authority an opportunity to be heard, and to take specified steps to overcome the default;  call in a matter for decision where it is felt that the proposal involved is “of national significance”7, and the Act specifies the criteria to which the Minister is required to have regard (see the Table below ).

Table 2: New Zealand call-in criteria In considering whether the proposal is of national significance, the Minister may have regard to any relevant factor including whether the proposal— (a) Has aroused widespread public concern or interest regarding its actual or likely effect on the environment (including the global environment); or (b) Involves or is likely to involve significant use of natural and physical resources; or (c) Affects or is likely to affect any structure, feature, place, or area of national significance; or (d) Affects or is likely to affect more than one region; or (e) Affects or is likely to affect or is relevant to New Zealand’s international obligations to the global environment; or (f) Involves or is likely to involve technology, processes, or methods which are new to New Zealand and which may affect the environment; or (g) Results or is likely to result in or contribute to significant or irreversible changes to the environment (including the global environment); or (h) is or is likely to be significant in terms of section 8 (Treaty of Waitangi). Resource Management Act, s.140(2).

The Minister must appoint a board of inquiry for each called-in case. The Board conducts a full inquiry and submits a report to the Minister8. This report must sum up the principal issues, and may make recommendations as to the substance of any plans or policy statements. It must also be made publicly available, following which the Minister makes his decision, which must be in accordance with the criteria specified by the Act for determining applications for resource management consent9. However, the process does not stop there. In following this procedure, the minister effectively steps into the shoes of the first-level consent authority. There is then, in accordance with the usual rules, a right of appeal to the Environment Court. It is a cumbersome and little used procedure. The call-in power has been exercised only twice. In the first case, which involved a proposal for a natural gas liquefaction plant at Stratford in Taranaki, the Minister appointed a high level Board of Inquiry to examine the proposal, and having acted on its 6

RMA, s.25. RMA, s.140. 8 RMA, ss.146-149. 9 RMA, s.149, applying s.104. 7

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recommendations, found his decision subject to appeal. The matter never reached the Court, as the Minister withdrew before the appeal was heard. The second occasion was in January 1996 when an application relating to ferries crossing between the two islands of New Zealand was called-in, and assigned to a Board of Inquiry chaired by a former Court of Appeal judge. 4.3.1.2 The Minister of Conservation This Minister is concerned primarily with coastal policy statements, and the lower level regional coastal plans. The Minister may also take the final decision on a resource consent application respecting the coastal zone, and has ongoing monitoring functions in relation to coastal policy generally. Unlike the Minister for the Environment, the Minister for Conservation retains ultimate decision-making power in matters in which the Environment Court is involved, and we return to this distinction below. 4.3.1.3 The Parliamentary Commissioner for the Environment The position of Parliamentary Commissioner for the Environment (“PCE”) was created by the Environment Act 1986, and was the first such office in the world. It is an idea which has subsequently been taken up by Ontario, Ottawa and the Australian Capital Territory. The need was first identified in the OECD Review of Environmental Policies in New Zealand in 1981, and later supported in the Environment Forum of 1985 initiated by the Labour government to review environmental regulation. The office was designed to overcome the conflicting roles of the previous Commissioner for the Environment, who functioned as ministerial advisor, public critic, public interest advocate and environmental assessment auditor. The PCE was established as an officer of Parliament to ensure independence from Ministerial control, a position shared only by the Ombudsman, the Controller-General and the Privacy Commissioner, which means that the PCE reports directly to Parliament rather than to the executive. The statutory function is to review the government system for environmental management as well as the effectiveness of implementation by the relevant public authorities. The PCE is not obliged to investigate all private grievance cases and can choose what issues should be subject to investigation. However the PCE is obliged to respond to all requests for investigation of environmental issues from the House of Representatives and Select Committees of Parliament, and is obliged to present an annual report to Parliament10. The PCE carries out reviews and complaint investigations on particular projects or on particular authorities. These complaints may come from members of parliament, from central or local government or from the public. The PCE cannot respond to individual complaints regarding a particular agency, unless that complaint is indicative of an ongoing problem with the agency involved, and which may merit further investigation. The PCE can carry out major investigations (which will be reported to Parliament) on matters of nationwide importance such as airport noise control and the adequacy of the water supply grading system, or may concentrate on smaller scale projects of mainly local concern such as particular sewerage plants, or the activity of certain regional 10

Environment Act 1986, s.23.

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councils in relation to its enforcement policies, or the Department of Conservation’s policy on possum control in a particular national park (categorised as minor investigations which are subject only to preliminary enquiries). The PCE can also appoint independent panel reviews on certain projects, where he appoints a panel at the request of a particular body to investigate the environmental consequences of a project, and where the body involved may fund the panel review. It is also the PCE’s policy to provide submissions to select committees on legislation before the House of Representatives which has potential implications for environmental management, and this can extend to a wide range of issues from resource management itself to matters such as agricultural compounds or land tenure proposals. Advice is also provided, on request, to Ministers of the Crown, central government agencies and local government organisations. In 1995/6, for example, two local government reviews were completed, each involving three councils which then resulted in an overview report, a summary for each council and a good practice guide for the future. It is a multi-faceted role encompassing both policy analysis and advice, performance auditing of administrative procedures and systems and also a participative role should the Commissioner become involved in assessing or participating in the resource consent procedure. However the office has no powers of enforcement or coercion. The final element of the PCE’s work is its educative function. It provides newssheets on environmental matters to Parliament on major issues of the day, in addition to publishing the results of its major investigations where these will be of general benefit. The Commissioner and his staff make numerous presentations to central and local government agencies, both on the work of the office and good environmental planning and management. The annual budget of the office is approximately $1.2 million. From this, the PCE currently employs around 15 people, 11 of whom are professional staff and four in corporate services. This in addition to the Commissioner and the Director. For the year 1995/6, the PCE engaged twenty-eight external consultants at a cost of $45,400, and a further twenty-one consultants were employed for specialist services on project investigations, at a cost of $34,900. Extra office services consultants were $10,500 for that year, indicating a relatively low level of expenditure on consultancy fees in the course of that year. Funding has fallen in real terms since 1986, and this points up a real problem with the PCE, which is that although it is independent operationally from the executive, it is financially dependent upon it.

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4.3.2 Local government reforms Local government in New Zealand had traditionally carried much of the responsibility for the administration of environmental protection and resource management. As part of the package of deregulation and state sector reforms introduced by the Labour government, reform of this area started in earnest in 1987, and provided for two classes of directly elected local authorities, who in their strengthened state would take over many of the disparate functions undertaken by the maze of existing territorial and special function authorities. While many of the territorial (also known as district) councils remained substantially the same in terms of their land use and planning functions, the regional bodies were reconstituted, and often had their boundaries redefined to anticipate their functions in water management and discharge control under the new regime. The former hundreds of regional, territorial and special purpose authorities were replaced by only 92 local authorities, including 12 regional councils, and 74 district and city councils. There have been some amalgamations since, and the present line-up is 12 regional councils, 15 city councils and fifty district councils (including the Chatham Islands) and four unitary authorities which have regional functions. Local government in New Zealand does not have the range of big-budget functions performed by local government in the UK, such as education and personal social services, but its new structure and the new approach to central-local relations that accompanied the reforms, meant that the new councils were in good shape to act as implementers of the resource management legislation that followed11. 4.3.2.1 Regional councils Regional councils have responsibility for resource management, particularly with regard to air and water. They also have functions in relation to regional civil defence, biosecurity, harbour administration and regional land transport planning. However the majority of land use planning and development control functions are the responsibility of the territorial or district authorities. The RMA functions of the regional councils extend to policy making, and the control of land-use for the purposes of soil conservation, water quality purposes and mitigation risk from hazardous substances12. They also have functions in relation to the coast. 4.3.2.2 Territorial authorities These local authorities, which include city and district councils, have a wide range of functions, and the performance of these functions. They include resource management policy-making, and control over land use and sub-division, noise control and activities on the surface of inland waters13. In practice, territorial authorities have become the lynchpin of the resource management system. They have flexible powers to transfer functions to another public authority, essentially to allow co-ordination, or delegation, of functions between regional and district bodies, or to allow for the pooling of functions and facilities where this is more practical14. 11

For a full evaluation, see Chilton, Bob Phoenix Rising: a study of New Zealand local government following reorganisation London. Audit Commission Occasional paper, 1993. 12 RMA, s.30. 13 RMA, s.31. 14 RMA, s.33.

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4.3.3 The Resource Management Act 1991 There was widespread criticism that the Town and Country Planning Act 1977, along with the Water and Soil Conservation Act 1967, imposed unnecessary and undesirable constraints on development, not only substantively in restricting development rights but also procedurally, in terms of the processes of obtaining permission. Critics maintained that the regime had the effect of delaying economically desirable development and making it more expensive15. They pressed for regulation that was more transparent, in terms of where and how decisions were being made, and simpler in terms of judicial and quasi-judicial processes. Against this, the conservationist, or Green, lobby maintained that in practice the controls were actually too weak, and that a more interventionist approach was needed. The resource management law reform process was launched formally in 1987. It was intended to bring about a complete overhaul of the legislative and regulatory framework dealing with land, air and water. The process involved wide consultation and participation, with numerous position papers from the government agencies and much opportunity for public submissions. It was time consuming and expensive, but justified as involving a consensus driven approach, which, it was hoped, would lead to less conflict in the longer term. The process continues still, long after the enactment and implementation of the RMA16. The RMA was to gain notoriety as the largest single item of new legislation ever enacted by the New Zealand Parliament, and it was promoted as a blueprint for environmental management (“sustainable management”) which would last well into the twenty first century. The Bill which was eventually introduced in 1989 ran to 459 clauses and had 7 schedules over 314 pages. Within 9 months 1325 submissions had been received by the special Parliamentary Select Committee. The main arguments centred on the manner of incorporation of the sustainability objective (from the Brundtland Report of 1986) into the new legislation as its fundamental purpose. This was particularly problematic given the importance to New Zealand of primary industries such as mining. Eventually the concept of “sustainable management” adopted by the RMA proved narrower than Brundtland, but the definition remains highly ambiguous. Hence, a debate continues within New Zealand as to its correct interpretation, and the Minister for the Environment has been publicly critical of the Environment Court’s interpretation of the crucial Part II of the RMA, which deals with the over-arching interpretative principles of resource management. The concept of “sustainable management” is the golden thread which unifies all environmental and resource management policy-making, planning and consent decision-making. It is more than a general aspiration, as such a principle typically would be under UK legislation17. All the institutions involved in resource

15

The competing views are summarised and evaluated in Tony Hearn’s report (footnote 3 above). See eg Owen McShane’s “think piece” commissioned by the Minister, The Regulatory Control of Land Use and the commentaries on it by Guy Salmon, Ken Tremaine and R Nixon (NZ Ministry of the Environment; April 1998). 17 See further Malcolm Grant, “Sustainable management: a sustainable ethic?”, Annual Conference of New Zealand Resource Management Law Association, October 1995. 16

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management must apply the principles of Part II, and ensure that their decisions can be reconciled with those principles. In addition to the substantive enactment of a single cohesive criterion, the legislation set about consolidating and integrating all the former environmental and planning legislation into one coherent set of provisions. The RMA repealed 12 primary statutes along with amendments to those Acts and others which remained in force; and it has itself been amended several times since enactment18. It amended 53 other Acts, and revoked or amended 21 regulations and orders. Its major achievement was in integrating the substance and process from the following four statutes, which were repealed: 

Town and Country Planning Act 1977;



Water and Soil Conservation Act 1967;



Clean Air Act 1972;



Noise Control Act 1982.

Hence, all regulatory controls over emissions to air, water and land based resources were integrated into one coherent piece of legislation. It established a common purpose, and reinforced it with a single framework for planning, policy making, consent giving and enforcement. Nonetheless, there are some areas of natural and physical resource management which are outside the scope of the RMA. These include fisheries19, and more recently the area of hazardous substances, but any activities which result in land based effects are caught by the RMA unless specifically excluded20. However the concept of sustainability also informs the legislation which covers the excluded areas, thereby maintaining a limited degree of harmonisation.

4.4 The hierarchy of resource management plans, policy statements and standards Integration of the administrative, planning and policymaking functions of the different levels of government is dealt with in Parts IV and V of the Act. Part IV provides for national policy statements and national environmental standards; and defines the policy responsibilities of regional councils (water and soil management, geothermal resources, 18

Resource Management Amendment Acts were passed in 1993/65; 1994/105; 1994 (No 2)/139; 1996/160; 1997/104. 19 The principal mechanism of regulation for fisheries is through quotas established under the Fisheries Act 1996, and this regime is outside the coastal management regime of the RMA, However, the Fisheries Act did introduce a parallel and complementary objective of sustainable utilisation of fishery resources. 20 The management of forestry resources is a case in point. District plans will typically regulate, through zoning, the ability to establish exotic forestry as a permitted activity, and they may also limit the removal of indigenous forestry to ensure conservation. An additional obligation was established in 1993, under the Forests Act 1949, requiring sustainable forest management plans in to be prepared for the milling of indigenous timber. An appeal lies to the Environment Court against decisions by the Forestry Secretary on the milling of beech forest in coupes.

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hazard mitigation, regional pollution control and certain aspects of coastal policy) and territorial authorities (mainly land use, subdivision, noise control). Vertical integration of these policies is dealt with by Part V, which seeks to ensure consistency between the different levels, and gives the Environment Court the power to resolve inconsistencies between policy and planning instruments, and to order a change to a policy statement or plan21.

4.4.1 The general section 32 obligation The bodies and individuals mentioned above have obligations under the Resource Management Act to implement guidelines, policies and plans which will ensure that the principles of the Act are respected. They are required to have regard to a number of matters before adopting any of these, including: (1) the extent to which the objective or action is necessary in achieving the purpose of the Act; (2) whether other means may be used; and (3) the reasons for adopting a proposed objective or action, and possible alternative means of achieving that objective. In addition, they are required to carry out an appropriate cost-benefit evaluation of the principal alternative means of achieving their objective, and be satisfied that what they are proposing (as an objective, policy, rule or other instrument) is both necessary and the most appropriate means of exercising the function22. The RMA establishes a broadly consistent approach to plan-making by specifying broad categories of activity, in descending order of seriousness of effect on the environment, as follows: prohibited activities, non complying activities, discretionary activities, controlled activities and permitted activities. Plans must define activities falling within each category, with sufficient clarity to allow the local authorities and others to understand and enforce these standards, and it appears as if a purposive interpretation is appropriate. A totally discretionary system is not allowed, and the authorities are not to allow undue discretion to arise within any of those categories. For the present, the rules used under many of the old TCPA schemes are being used in the transitional period. These will apply to the last three categories listed above. For each of these categories it is expected that the rules will contain good guidelines on the standards to be desired and set out potential conditions to be imposed in this category. For activities which are not contemplated under the scheme but are not intended to be prohibited, they may be left to be advanced under the non-complying activity, which may potentially obtain a consent.

21

The principal Act has since been amended by Resource Management Amendment Acts in 1993, 1994, 1996 and 1997. 22 RMA, s.32.

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4.4.2 Plans and rules A distinctive feature of the New Zealand approach is the legal status which is afforded to plans made under the Resource Management Act. An authority making a plan (though not in the case of a policy statement) may include in it rules which prohibit, regulate or allow activities. Those rules then have the force and effect of statutory regulations made under the Act23. Hence the rules contained in a plan have the status of a statutory instrument. They are not policies, but legally binding prescriptions. It is an approach which reveals the zoning basis of the New Zealand system, because it is the plan which then defines what development or activities are to be permitted as of right, and what can be undertaken subject to conditions or consent, or not at all. In the case of “controlled” and “discretionary” activities the rules must specify the standards and the terms that the activity must comply with, and the matters to which the authority has restricted the exercise of its discretion, and whether an application for a resource consent may be considered without notification to, or the need to obtain written approval of, the statutory consultees specified in the Act24. In making rules, the council concerned must: “have regard to the actual or potential effect on the environment of activities, including, in particular, any adverse effect; and rules may accordingly provide for permitted activities, controlled activities, discretionary activities, non-complying activities, prohibited activities and restricted coastal activities”.25 It is this formulation which has led to the resource management system being described as an “effects-based” system.

4.4.3 Process A further distinctive feature of the resource management approach to policy and plan making is the requirement of openness and public participation. Proposed policy statements and plans (and proposed subsequent changes) are required to be notified publicly and consulted upon. Any person may make a submission, and the local authority must hold a hearing into the submissions26 and give its decisions, with reasons, for accepting or rejecting any submissions27. Any person who made a submission may then refer any provision, or matter excluded, to the Environment Court, which must hold a hearing into the matter. The reference is treated as if it were an appeal, and the Court has power to confirm, or to direct the local authority to modify, delete, or insert any provision which is referred to it28.

23

RMA, s.68 (regional rules); s.76 (district rules). RMA, s.94(1). 25 RMA, s.68(3), which also adds “restricted coastal activities”; s.76(3). 26 RMA, Sched 1, para 8A. 27 RMA, Sched 1, para 10. 28 RMA, Sched 1, para 15. 24

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4.4.4 National environmental standards National environmental standards may be prescribed by the Governor General by regulations, for the purpose of setting technical standards relating to the use and protection of natural resources. The standards may cover matters such as air quality, water quality and soil quality. The standards are proposed by the Minister, who must satisfy the Governor General that he has established a process giving the public adequate time and opportunity to comment, and has received a report and recommendation on the comments, and on the proposed subject matter of the regulations29. There was some concern about this power during the drafting stage of the Act, as it was feared that it might enable the government of the day to exercise an overriding power. It has not yet been exercised, and the Government has preferred instead to issue non-binding guidelines, such as those relating to water quality standards for municipal drinking water systems. These have been found to be more flexible and no less effective than formal environmental standards30.

4.4.5 National policy standards The Minister may issue national policy statements, whose purpose is to “state policies on matters of national significance that are relevant to achieving the purpose of this Act”31. These are intended to guide decisions nationally on matters such as the country’s obligations respecting the national or global environment, new technology, anything of national environmental significance because of its uniqueness, irreversibility or potential magnitude, and matters of practice such as the development of economic instruments. There is a prolonged consultative process. There must be prior public notification and a Board of Inquiry which will hold hearings32. No national policy statements have yet been made by the Minister for the Environment, and this situation seems unlikely to change in the near future. This is commonly attributed to an ideological stance on the part of recent governments that the national level is not the most appropriate for environmental policy-making, which should be devolved to the lowest level possible. Other counter factors include the expense and time that the process would necessarily entail. The hierarchical dominance of a national policy statement is secured by provisions that require local authorities, as far as possible, to change their regional or district plans to avoid the possibility of any inconsistency arising between them and the national policy33.

29

RMA, s.44. A similar experience has occurred in England and Wales, where the formulation of statutory environmental quality standards has proved difficult and time-consuming. 31 RMA, s.45. 32 RMA, ss.47-51. 33 RMA, s.55(1). 30

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4.4.6 National coastal policy statement Similar powers are conferred on the Minister of Conservation with regard to coastal policy statements. A New Zealand coastal policy statement is a mandatory requirement34.

4.4.7 Regional policies and plans Each regional council or unitary authority is obliged to prepare a regional policy statement, which will review the main environmental issues in that region and prescribe outline policies to deal with them35. These policy statements, which are mandatory, must identify the resource management issues of the region, and the policies and methods to achieve integrated management of the natural and physical resources of the whole region36. They are policy statements: not binding rules. However, the same regional bodies also have functions in relation to regional plans. Where a region includes part of the coastal marine area, a regional coastal plan is mandatory37, reflecting the economic as well as the environmental importance of the coast in New Zealand. The coastal plan may form part of a wider regional plan (which is an optional document)38. Other regional plans are optional39. The majority of regional authorities have not yet produced any non-coastal regional plans. The procedures for plan preparation require full public consultation, and provide rights of objection, including the right to refer objections to the Environment Court40. The matters to be included in the regional plan are specified in great detail in the Act itself41, though having regard to the circumstances of the region in question. The regional plan may include rules, which will “prohibit, regulate or allow” specified activities, and have legal force. However, in practice the only documents in which rules are prescribed, apart from the coastal plans, has been the district plans prepared by the territorial authorities. Both policy statements and plans at the regional level must be reviewed every 10 years after initial operation, with similar detail required at review stage.

4.4.8 District plans District plans are the cornerstone of a national hierarchy of policies and plans envisaged by the Resource Management Act. Every territorial authority is under a duty both to prepare and administer such a plan42. There are requirements for public notice and opportunity for participation in the preparation of the plan. 34

RMA, ss.56-58. RMA 1991, ss.59-71. 36 RMA, s.59. 37 RMA, s.64(1). 38 RMA, s.65. 39 RMA, s.66. 40 RMA, Sched 1, para. 14. 41 RMA, Sched. 2, Part I. 42 RMA 1991, ss.72-77. 35

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The Act specifies a substantive framework of the matters that may be provided for in district plans43, and the matters to be taken into account in formulating them44, including national and coastal policy statements, regional policy statements and plans where these exist and other management plans prepared under other specific legislation. The district plan will include rules. The Act provides45 that the rules may provide for a hierarchy of activities, “permitted activities, controlled activities, discretionary activities, non-complying activities and prohibited activities” in that order of gravity of effect on the environment. Following an initial five-year transitional period, the whole of a district plan is to be reviewed at least every 10 years by the territorial authority46. Plans may be varied at any time, and any person may formally request a change to be made47. If the request is accepted only in part, or refused, or treated as an application for resource consent, the applicant is entitled to appeal to the Environment Court48. Every local authority is required to follow the provisions of its own local plan, in addition to ensuring that both its contents and that of the district policy statement are observed by private and public bodies. Disputes over possible conflicts between plans and regional policy statements can also be brought before the Environment Court for resolution.

4.4.9 Compensation for restrictions imposed by plans The Act provides that no compensation is payable in respect of restrictions imposed by plans49. However, it goes on to provide a remedy which is modelled loosely on the purchase notice procedure of the English legislation50 except that, instead of providing the landowner with a right to require the authority to acquire his interest in the land, it provides him with a right of application to have the relevant provision of the plan or proposed plan set aside51. The right arises where a landowner considers that the provision would render his interest in the land “incapable of reasonable use”. He may either make a submission on the draft plan or apply subsequently to change the provisions of the plan, in both cases to the authority concerned. An appeal lies from the decision of the local authority to the Environment Court, which may direct the authority to delete modify or replace the provision to correspond with its decision.

43

RMA, Sched 2. RMA, s.74(2). 45 RMA 1991, s.76(3). 46 RMA, s.79(2). 47 RMA, Sched 1, para 21. 48 RMA, Sched 1, para 27. 49 RMA, s.85. 50 Town and Country Planning Act 1990, s. 138. 51 RMA, s.85(3). 44

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4.5 The requirement of resource consent Regional and district plans contain rules specifying certain activities (controlled activities and discretionary activities) which may only lawfully be carried out with consent, known as “resource consent”. Unless an activity is specified in the plan as subject to some form of control, it may be carried out without consent. Although there are different types of resource consent52, there is a unified procedure for the making and determination of applications. Applications are made to the relevant local authority as “consent authority”, and there is a general requirement that every application must be notified to certain specified bodies, as well as being publicly notified53. However, the Act then goes on to allow exemptions from the public notification rules54: for example, if the plan itself exempts the activity from notification, or if the consent has been obtained of all persons who might be adversely affected by the granting of consent55. There are approximately 60,000 resource management consent applications each year56, which is a surprisingly high volume57. Of these, however, only around 5 percent are dealt with on a notified basis, and only in these cases is there a third party right of appeal to the Environment Court. As might be expected, this performance is controversial, and amendments were proposed by the 1999 Bill to allow an authority to limit notification in cases involving minor effects to parties identified as being affected, but who have otherwise declined to give their approval. These more flexible notification procedures are to be accompanied by an enhanced ability to scrutinise and review a decision not to notify, including a right of review by the Environment Court58. There is an obligation on the district or regional authority to hold a hearing into a resource consent application if so requested by the applicant, or a person making a submission; or if the consent authority considers that a hearing is necessary59. A hearing must be held within 25 days of the closing of the submission period, although this time limit may be extended on application60. The hearings committee will normally comprise two or more councillors, and will have delegated authority to hear and determine the outcome of consent applications. Hearings may alternatively be conducted by an independent commissioner, and the Government proposes that this should become, if not the norm, then certainly more common for the future61. 52

They are: land use consents; subdivision consents; coastal permits; water permits and discharge permits (RMA, s. 87). 53 RMA, s.93. 54 RMA, s.94. 55 RMA, s.94(1)(c) and (3)(c), though the authority have power to waive this if they think it unreasonable in the circumstances to require the obtaining of every such approval. 56 The figures in this section come from the Reference Group Report Proposals for Amendment to the Resource Management Act (October 1998). 57 This is a ratio of 0.017 per citizen compared to the ratio in England for planning applications of 0.008 per citizen. 58 Resource Management Amendment Bill 1999, clause 37. 59 RMA, s.100. 60 RMA, s.101. 61 The Resource Management Amendment Bill currently before Parliament contains provisions inserting

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Both the consent authority and any submitter who has stated a wish to be heard may speak and call evidence, but may not raise any points not covered in the submissions (both the consent officer’s report and material of the submitters should be distributed before the hearing), and may not cross-examine other witnesses. After the applicant responds to the submission, the hearing is closed. There is a right of appeal against all decisions of consent authorities on applications for consent, and/or the imposition of conditions on that consent. Appeals may be made by the applicant or consent holder, or by any person who made a submission on the application. There is no more general right of appeal by third parties. One of the major shortfalls in this otherwise open procedure is the power granted to local authorities to decide not to notify an application under the Act where it they believe that the effect of the proposed activity on the environment will be minor. Some interviewees suggested that this was abused in practice. There is no right to appeal to the Environment Court against such a decision (but a right of review was proposed in the 1999 Bill). The only means of challenge is by application to the High Court for judicial review, which is sufficiently expensive to be impracticable to the majority of complainants. The following table gives a flavour of the caseload that the Act generates for consent authorities. Table 3: RMA caseload of Wellington City Council, 1996 Applications received Applications not accepted on first receipt Decisions issued (1) notified (2) non notified Applications where submissions were received Applications where a pre-hearing meeting was held (1) and issues were resolved without a formal hearing (2) and a formal hearing followed Decisions given within the time constraints imposed by the Act after allowing for postponements and waivers/extensions Decisions given outside those limits Appeals where Council decisions were (1) upheld (2) not upheld

790 87 84 680 72 26 18 633 130 1 1

new ss.29A, B, C and D into the main Act, allowing the Minister to appoint hearing commissioners, and providing that a commissioner will conduct the local authority hearing into a resource consent applications if that is required by the authority, the applicant, or a submitter. A councillor may not be a commissioner, and commissioners are to be required to act independently, though their decision is to have effect as if it were a decision of the local authority.

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The Wellington Regional Council proposed Regional Coastal Plan attracted 152 submissions, which were heard by the Council. Nine submitters then referred aspects of the Council’s decision to the Environment Court.

4.6 The constitution and establishment of the Court 4.6.1

Judges and commissioners

Having outlined the administrative context within which it operates, we now turn to the Environment Court itself. Under the Resource Management Act 1991 (as amended in 1996) the maximum number of judges in the Environment Court is eight. At present, there are 6 Environment Judges and one alternate (or relief) judge. There are also presently 12 Commissioners assigned to the Court, with a further three Deputy Commissioners. A Commissioner is a three quarter time appointment, and appointees are free to use the remainder of their time in any manner which would not conflict with the interests of their position.

4.6.2 Appointment of judges The Environment Judges are drawn principally from private practice, and only one of the present group comes from a different background (the Crown Law Office)62. The appointments are made by the Minister of Justice. There is no judicial appointments commission, but there is no suggestion of political bias in the appointments process, nor that the judges reflect the political priorities of those who appoint them The term of appointment and security in the position is the same as for District Court judges in New Zealand. The appointment is until retiring age, and this currently stands at 68 years for District Court judges. It is extremely difficult in New Zealand to remove a judge from office, whatever the level of the court, and there are no special or unusual conditions attached to the tenure of Environment Judges63. Every judge is entitled to sabbatical leave of 3 months for every 5 years of service. This may be spent in any manner the judge chooses, and need not be linked to their judicial functions. Salaries are set by the Higher Salaries Commission, the body which deals with pay for all higher-level civil servants. Environment Judges are paid at the same level as District Court judges, the present level being approximately $160,000 (in the region of stg £55,000). New Environment Court judges have usually already had experience of practice before the Court and no formal training is provided for them on appointment. They share a learning process with their fellow judges. The process consists of approximately two months observation and study, followed by a week-long residential course which is held 62

The former judicial members of the Planning Tribunal retained appointment following the redesignation of the Tribunal as the Environment Court in 1996, with permanent tenure. 63 Any judge or commissioner of the court may be removed by the Governor-General for inability or misbehaviour: RMA 1991, s.258.

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annually for new District Court judges. This is more in the nature of an orientation programme than a specific training programme for new judges. Environment Court judges have the same status as other District Court judges, albeit operating in a more specialised setting. However, this specialisation makes them unlikely candidates for elevation to the High Court bench, in that it “pigeon holes” them. A well-known practising environmental lawyer was recently appointed to the High Court bench directly from private practice, and this remains the more likely route for top judicial appointments. We encountered a common perception amongst the practitioners and groups that we spoke to that the calibre of the judges is high, and the intellectual standards of the Court more than satisfactory. The calibre of its decision-making is seen as being on a par with the High Court, and this is probably borne out in the relatively low success rate of appeals to the High Court from the Environment Court. It is also widely acknowledged that the Environment Judges work extremely hard, and there was no sense of disgruntlement amongst practitioners with the work rate of the Court. The pool from which judges can be recruited is remarkably small. There are still relatively few specialist resource management lawyers in practice, and the terms and conditions of appointment are not overwhelmingly attractive. The real problem appears not to be the level of pay, although it is substantially less than what is available in practice, but rather the amount of time which Environment Judges spend on circuit. This is generally felt to be a considerable disadvantage of the job. One of the judges is designated Principal Environment Judge, and has the responsibility “for ensuring the orderly and expeditious discharge of the business”64 of the Court, and for allocating applications, referrals and appeals amongst the other Judges and Commissioners. The use of an alternate Judge is also a matter for decision by the Principal Environment Judge65. The designation is conferred by the Minister of Justice. The position is principally administrative, and hence the possession of good administrative skills is a primary criterion. The appointment is not based on seniority. Yet the position is important in political terms, for example in “fronting” for the Court in negotiations over resources. The present Principal Judge is also chairman of the non-statutory Environment Court Advisory Committee, under the Department for Courts, which has MFE representation along with other relevant departments66. Its functions are administrative and relate to issues such as funding and other resources. The judges normally each have about 8 to 10 cases awaiting written decisions before them at any given time. The majority of judgements are delivered within 4 to 5 weeks.

64

RMA, s.251(2). RMA, s.252. 66 The Department for Courts and the Ministry for Justice. 65

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4.6.3 Commissioners Environment Commissioners, and Deputy Environment Commissioners, are full members of the Environment Court67. They come from a variety of backgrounds, with greatly differing qualifications, reflecting the requirements specified in the Act68. The original role of the Commissioners was akin to that of a jury, the idea being that the lay commissioners could bring their experience from everyday life to balance any unduly legalistic view which a judge might take if sitting alone. The idea that they should represent different community interests has not been totally lost, but has been overtaken by the wish to bring specialist knowledge to the Court, and to allow it to function as a multi-disciplinary jurisdiction. Commissioners now represent the range of relevant occupations envisaged by the RMA, such as town planning, surveying, engineering and scientific specialisms. Commissioners are appointed for terms of up to five years and are then eligible for reappointment. These appointments are also made by the Minister of Justice. The quality of some of the Commissioners has given rise to some concern, and criticism was expressed to us that a few appointments had not brought any worthwhile expertise to the Court. This is certainly not universally true, and may still be a transitional phenomenon between old style “jurymen” and new style experts: most Commissioners are very highly qualified, and their experience and areas of expertise are wholly in accord with the Act’s criteria. With the increasing pressure on the Court and a growing need for technical expertise, any weakness on the part of Commissioners is quickly apparent. Commissioners are entitled to play a full part in proceedings. A Judge presides over the proceedings and over the decision-making process. It will be normal for Commissioners to ask questions and to participate, subject to the Judge’s chairmanship. Some interviewees suggested to us that practice varied between judges, and that some exercised tighter control over intervention by Commissioners than others. That is to be expected. Commissioners may, with the consent of all the parties, sit without an Environment Judge69, but this is rarely done in practice70. An important function of Commissioners is to preside over pre-hearing mediation proceedings71. Settlements

67

These commissioners are a quite different appointment from the Hearings Commissioners who hold local authority hearings into resource consent applications. 68 In making an appointment, the Minister of Justice is required to ensure that the court possesses a mix of knowledge and experience in matters coming before the Court, including in “(a) economic, commercial , and business affairs, local government and community affairs; (b) planning, resource management, and heritage protection; (c) environmental science, including the physical and social sciences; (d) architecture, engineering, surveying, minerals technology, and building construction; (da) alternative dispute resolution processes [inserted in 1996] (e) Matters relating to the treaty of Waitangi and kaupapa Maori.” RMA 1991, s.253. 69 RMA, s.280, as amended by the 1996 Act. 70 The power was used five times in 1996: Report of the Registrar of the Environment Court for the 12 Months ended 30 June 1998, p.4. 71 RMA, s.268.

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following mediation significantly enhance the efficiency of the appeal process and reduce case numbers72. Recruitment of high quality commissioners is not easy. Remuneration is relatively poor for a professional with expertise in resource management73, and this means that the job is not a career posting for the top people in their respective professions. Nor does the post carry tenure.

4.6.4 Administration of the court The principal office and Registry for the Court is in Wellington, with subsidiary offices in Auckland and Christchurch. This reflects the common problem in New Zealand, that although Wellington is the Capital, Auckland has the greater population and is therefore by far the busiest area of jurisdiction. The offices deal with detailed arrangements regarding court sittings and administration, including the issuing of decisions. The members, both Judges and Commissioners, are dispersed throughout the country, though with something of a cluster in Auckland. Despite the physical distances involved, the judges are in regular contact by telephone or email, and this further encourages consistency of approach.

4.6.5

Relationships with external bodies

The legislation does not create any formal relationships between the Court and other bodies. The Environment Court is, in administrative terms, part of the Tribunals Division of the Department for Courts. Although constituted as a court of record the Court is not part of the hierarchy of general courts—District Courts, High Court and the Court of Appeal. Neither is it part of the District Court as is, for example, the Family Court and the Disputes Tribunal. It enjoys a place of its own, as does the Employment Court, although its level in the hierarchy of courts is the same as that of the District Courts. It also enjoys a relationship of comity with the District Court and tribunals of equivalent jurisdiction such as the Liquor Licensing Authority and the Waitangi Tribunal. The Court is run directly by the Department for Courts, which is distinct from the Ministry for Justice. There is informal contact between the Court and the Parliamentary Environmental Commissioner on matters of mutual interest, but given that the Commissioner may, in theory, appear before the Court in particular cases where he exercises his right to appear, there is no formal basis for the interaction. The Commissioner has only once appeared before the Court, in a case involving a contentious gold mining project. In that case, the Commissioner had obtained independent experts’ reports, and engaged counsel to put the PCE’s position, which was actually in favour of the project which duly proceeded.

72

See below, paras 4.10.2 and 4.11.12. The full time equivalent is approximately $78,000 per annum, but Commissioners are employed on a 3/4 time basis which means that they are actually paid in the region of $55,000 (stg£25,000) per annum. 73

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There is no formal relationship either between the Minister for the Environment (MFE) and the Court. Not only does the Minister have no power to direct the Court, he has no overriding responsibility for implementing or interpreting the principles of resource management, and no capacity to make environmental policy generally, save through the formal process of issuing national policy statements74 or bringing forward proposals for amending legislation. However, there is inevitably informal contact between the Court and the Ministry in relation to the implementation of the legislation, and the Court has not been unwilling to suggest, in its judgements, possible amendments to the Act. The relative weakness of the Minister’s position is illustrated by the arrangements for call-in of applications. As we have seen, this power75, which is modelled on the British legislation76, provides a potentially strong platform from which to assert national policy considerations over the local choice that lies at the heart of the RMA model. The Minister may call-in a matter of particular national significance, hold an inquiry and make a decision on the basis of the report of the Board of Inquiry. However, unlike the British system, the Minister does not have the final say. His decision can be appealed to the Environment Court on the merits as if it were an ordinary decision of a local authority.

4.6.6 Funding and resources The Court service is funded almost entirely from general taxation. In 1997/1998, for example, the total expenditure of the Court was $3,166,793, all of which came from tax revenues except for income from filing fees and sale of copies of decisions totalling $87,832. On the basis of 420 sitting days in that financial year, the overhead cost per sitting day of the Environment Court is around $7,500. The annual budget is agreed with the Department for Courts, and it forms part of the Department’s own budget. The Environment Court does not have its own premises. In Auckland, Wellington and Christchurch the Court shares hearing rooms with other tribunals of the Tribunals Division. These premises are allocated on a relatively permanent basis, having been used by the Court for some years. Outside these centres and the other major centres where district court premises can be used, problems arise in finding suitable venues. The Environment Court is obliged to sit in locations as close as possible to the location at issue, unless there is some good reason or the parties agree to the contrary77. As Table 4 shows, this means that it must sit in many different centres, often in buildings which are far from ideal. This is particularly the case in the South Island where the Court has only two Environment Judges on a permanent basis. The peripatetic nature of the Court is one of the greatest administrative difficulties associated with its operation. It leads inevitably to inefficiencies, and the loss of costly sitting days, when the Court is forced to move from location to location, in some cases every week.

74

See below at p 116. RMA, s. 160. 76 Town and Country Planning Act 1990, s.77. 77 RMA, s.271. 75

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Table 4: sittings of the New Zealand Environment Court 1991-1998

Kaitaia Paihia Kaikohe Whangarei Auckland Pukekohe Thames Paeroa Waihi Whangamata Whakatane Gisborne Opotiki Te Aroha Tauranga Morrinsville Hamilton Cambridge Rotorua Taupo Napier/Hastings Palmerston Nth New Plymouth Levin Masterton Wellington Blenheim Nelson Greymouth Westport Christchurch Timaru Queenstown Oamaru Alexandra Dunedin Gore Invercargill TOTAL

1991/92 (weeks) 4 5 44 3 1 2 4 7 2 2 6 1 3 2 8 1 4 1 101

1992/93 (weeks) 1 31 3 1 1 1 5 3 1 2 1 2 3 11 4 2 1 9 3 1 5 1 95

1993/94 (weeks) 2 4 21 1 1 3 1 1 5 5 1 1 1 1 3 2 10 3 5 3 14 3 1 2 2

1994/95 (days) 1 15 76 2 6 3 5 4 12 22 5 9 7 2 41 27 10 3 10 34 4 28 7 12

97

345

1995/96 (days) -

111 -

34

-

12 391

1996/97 (days) 12 22 15 139 7 1 1 1 2 2 5 8 12 18 11 4 1 2 2 1 7 19 6 2 4 3 13 17 28 23 10 15 2 2 1 2 64 37 6 19 15 15 7 13 22

1997/98 (days) 9 8 12 118 4 11 3 8 13 2 16 10 2 1 4 5 44 24 16 10 2 49 16 2 29 1

384

420

Source: adapted from Annual Reports of the Registrar of the Environment Court 19911998.

4.6.7 Staffing The Court has its own small executive staff, based at the central Registry in Wellington. In Auckland, staff are shared with the other Tribunals operating from the same building.

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Cases are managed centrally from the executive offices in Wellington, which are well provided with IT facilities.

4.6.8 Allocation of business Business is allocated on a geographical basis according to demand. Sometimes the important nature of a case may necessitate two judges sitting together for a matter, and this will call for a juggling of resources. Allocation of cases amongst the different Environment Judges and Commissioners is done by the central Registry in Wellington in consultation with the judges. The main problem is the co-ordination of the availability of those Commissioners who possess the relevant expertise for the case with the appropriate judge, and dealing with the absence of judges on major cases which may take up to six months. The geographical spread of judges is also a practical consideration.

4.6.9 Case management The creation in 1995 of the Department for Courts as a separate body within the civil service coincided with a new drive to achieve efficiency within the court structure. While case management had always been practised by the Registry, a more aggressive American style has emerged in recent years. Inevitably, this has increased the pressure on the Environment Court Judges, who already felt stretched. There has been experimentation with a more “hands on” approach to speeding up throughput. This involves a regular “call-over” of the entire caseload which that Judge presently has. The aim is for this to take place every six weeks, though this is not always possible. At the call-over the Judge is expected to be provided with a good statement on the progress of the case, as well as examining whether the case might be suitable for resolution by ADR. The central theme running through the policy is one of judicial intervention—early and often—in the Court’s backlog. The Court has taken the view that only by judicial notice will parties, and perhaps more importantly their lawyers, address the possibility of dealing with the case, or even parts of it, outside the usual Court structure. The new management approach is generally seen by practitioners as a success, but there is still a large backlog of cases. It appears to be not just a question of resources, but, as with recent experience in England and Wales, a temporary skewing of the caseload because of the large number of the new district plans which then came before the Court at the one time. There is also a problem of availability of legal expertise for the parties, because of the relatively small number of specialists in this field and the volume of recent work. The Court believes that it is now succeeding with its case management, and has encouraged the legal profession to be more proactive in their own case management, particularly at the pre-hearing stages. By the first call-over or pre-hearing conference the parties are more closely focused on the issues before them, or will have often decided whether the matter actually needs to come to the Court or be settled some other way, including by mediation78 78

Report of the Registrar of the Environment Court1998, p.8.

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4.7 Jurisdiction 4.7.1 Plans and policy statements The Court has wide powers of review of policy statements and plans prepared under the Resource Management Act. They include:  Any person who made a submission on a proposed policy statement or plan may refer the matter to the Environment Court79, effectively as an objection to the policy statement or plan. References to the Court are required to be filed within 15 working days of the issue of the decision by the District or Regional Council;  The Court may, in any proceedings before it, direct a local authority to amend a regional plan or district plan to which the proceedings relate, in order to correct any mistake, defect or uncertainty in it, or to give full effect to the plan80  On the hearing of any appeal against, or inquiry into, the provisions of any policy statement or plan, the Court may direct that changes be made to it81. The Court may decide that a reasonable case has been made for changing or revoking a provision in such a statement or plan, and that further opportunities should be given to parties with an interest in the matter. The Court may require that the local authority give public notice of their revised proposals and provide an opportunity to receive further submissions on the policy or plan82.

4.7.2 Resource management consent appeals Appeals arising out of applications for a resource consent may be brought by an unsuccessful applicant or by an objector (a “submitter”) to the application83. These may relate to whether or not the consent should be granted, or they may relate to the actual conditions of the consent. The consent applied for may be for controlled activity, discretionary activity, or non-complying activity as defined in the district plan; or for subdivision consent, a coastal permit, a water permit or a discharge permit.

4.7.3 Compulsory acquisition and public works The Court has jurisdiction in appeals against requirements for designating land for public works. These matters can give rise to major hearings, for example designations for sewage treatment plants or waste disposal facilities.

4.7.4 Declaratory jurisdiction The Court has power to make declarations regarding the powers, rights and duties under the Act; about inconsistencies between policy statements and plans or water conservation orders; about contraventions of the Act or resource consents; about 79

RMA, Sched. 1, para 14. RMA, s.292. 81 RMA, s.293. 82 RMA, s.293(2). 83 RMA, s.120. 80

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classification of activity under the Act; and about the landward boundary of a coastal marine area84. This includes the extent of any function, power, right or duty or whether there are inconsistencies between policies. It also includes whether an activity or omission falls into a particular category prescribed under a plan. Any person may apply for these declarations, except that only a Minister or a consent authority may seek a declaration that a person is contravening a resource consent condition, or a rule in a plan, which requires the holder to adopt the best practicable option to avoid or minimise any adverse effect of a discharge85. Although a declaration may find a contravention of a plan or resource consent, it is has no binding effect and does not therefore of itself impose civil or criminal sanctions.

4.7.5 Enforcement There are three principal modes of enforcement under the Act that affect the Court: 4.7.5.1 Abatement orders Local authorities may appoint enforcement officers86, who are empowered to serve abatement notices87 on any person, requiring them to cease (or not to start) anything which in the officer’s opinion:  

contravenes or is likely the contravene the Act or a rule in a plan or a resource consent; or is likely to be noxious, dangerous, offensive or objectionable to such an extent that it has or is likely to have an adverse effect on the environment.

Hence, an abatement notice resembles both a planning enforcement notice and a statutory nuisance abatement notice under British legislation. It may specify steps that the enforcement officer requires to be taken. An appeal lies to the Environment Court against an abatement order88. These matters are usually heard by an Environment Judge sitting alone, without the assistance of Environment Commissioners. 4.7.5.2 Enforcement orders Any person may apply to the Environment Court for an enforcement order against any other person89. This provides the Court with a wide enforcement jurisdiction, that can be triggered by any citizen. The Court’s powers extend not only to requiring the cessation of contravening activity, but also the taking of remedial steps, the mitigation of adverse effects, the payment of money to meet the costs incurred by others to avoid, remedy or mitigate adverse effects. The Court may also change or cancel a resource consent, and it 84

RMA, s.310. RMA, s.311(2). 86 RMA, s. 38. 87 RMA, s.322. 88 RMA, s.325. 89 RMA, s.316. However, only a Minister or a consent authority may seek an order relating to contravention of a resource consent condition, or a rule in a plan, which requires the holder to adopt the best practicable option to avoid or minimise any adverse effect of a discharge (s.316(5)). 85

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may impose such terms and conditions as it thinks fit, including the payment of any administrative charge and the provision of security or a bond for performance90. There are extensive supplementary powers to make interim orders91, and to change or cancel enforcement orders92. Interim enforcement orders are issued only when immediate action is required, when the conditions for urgent or remedial action cannot be met or when a court order is desirable. Any person may apply to either the Environment Court or the District Court for an interim enforcement order and matters can be, but seldom are, dealt with ex parte. The Court considers a number of matters including: 

the environmental effects of not making the order;



whether or not an undertaking as to damages has been given;



whether the judge should hear any of the parties.

Where the person liable under an enforcement order fails to comply, the Court may consent to another person or body securing compliance and recovering their costs as a debt93. 4.7.5.3 Criminal liability Extensive criminal liability is created by the Act94. It is, for example, an offence to contravene a rule in a district plan or proposed district plan (except in accordance with an existing use)95. Breach of an enforcement order is also an offence. A territorial authority may be liable for breach of its own district plans and rules. The Environment Court has no criminal jurisdiction. However, its Judges have a warrant to hear criminal matters sitting in their capacity as judges of the District Court. This is the common, but not exclusive practice. Some criminal environmental matters will in practice, either because the issues are relatively minor or because of judicial allocation logistical problems, go to an ordinary District Court judge.

4.7.6 Other statutory jurisdiction The Court also has powers under a range of other legislation, in addition to the RMA. Most notably, there is the Local Government Act 1974 and the Public Works Act 1981. There is a right of appeal to the Court under the Historic Places Act 1993, but it is little used.

4.7.7 Inherent jurisdiction This is an enhanced administrative court. It does not have any inherent or general jurisdiction. Its powers are exclusively conferred by statute. It has no common law 90

RMA, s.314. RMA, s.320. 92 RMA, s.321. 93 RMA, s.315. 94 RMA, s.338. 95 RMA, s.338 referring to s.9. 91

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jurisdiction, and environmentally related actions in tort may be brought only in the general civil courts. To this extent, it is not a wholly integrated jurisdiction, but we encountered no general concern about this exclusion. The advantage of statutorily conferred jurisdiction, as is evident also in England and Wales and the Australian jurisdictions we have examined, is that it can be designed in a way that avoids problems of jurisdictional overlap or conflict.

4.8 The substantive framework for decisions 4.8.1 Sustainable resource management It is impossible to understand the context within which the Environment Court operates without looking at the informing principles of the Resource Management Act which affect every decision made by the Court and which the Court may itself use, of its own initiative, to make a decision on any matter which may come before it. The matters set out in Part II of the RMA are central to the preparation of regional and district plans and, in turn, to the Court’s handling of resource consent appeals. Section 5 provides that the purpose of the Act is to promote the sustainable management of natural and physical resources. It specifies in detail what that is to entail. The definition of “natural and physical resources” includes “land, water, air, soil, minerals, and energy, all forms of plants and animals . . . and all structures”. Additionally, under section 5(2), special prominence is given to the reasonably foreseeable needs of future generations, and to the life supporting capacity of air, water, soil and ecosystems. It is a complex set of definitions and objections, and it has proved difficult to translate into practice. In his public lecture in 199596, the Minister for the Environment, the Hon Simon Upton, made a strong claim for the normative power of the three sub-paragraphs: “Whatever section 5(2) has to say about economic or social activities, the matters set out in sub-paragraphs (a), (b) and (c) must be secured. They cannot be traded off. They constitute a non-negotiable bottom line. Unless it is a bottom line, sustainable management ceases to be a fixed point or pre-eminent principle and sinks back into being a mealy-mouthed manifesto whose meaning is whatever decision makers on the day want it to be.” There is no doubt that section 5 establishes an ethical framework within which decisionmakers are legally obliged to operate97. Moreover, the subparagraphs do not simply establish a list of optional targets: it seems now to be accepted that the word “while” which links the subparagraphs to the opening part of the subsection is not intended merely to express a general desire for contemporaneity, but to require that the three specific objectives or constraints must all be pursued while people and communities are 96

“Purpose and principle in the Resource Management Act'”; University of Waikato, 26 May 1995. These arguments are made in Malcolm Grant, “Sustainable management: a sustainable ethic?”, Annual Conference of New Zealand Resource Management Law Association, October 1995. 97

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being enabled to provide for their well-being98: to put it another way, their enablement must not render incapable of fulfilment the objectives specified in the three subparagraphs99. Section 5 captures a variety of different environmental values which are not necessarily in accord with each other. This means that, whilst discretionary power under the Act is not to be exercised in a vacuum, section 5 does not provide anything like a clear framework for decisions, and that trade-offs are indeed necessary when it comes to designing and implementing the necessary management strategies. Section 6 specifies a further five matters as being matters of national importance, which must be recognised and provided for by all persons exercising powers and functions under the Act100. Section 7 lists “other matters” to which “particular regard” is to be had, relating generally to general environmental quality. Section 8 specifies that in achieving the purpose of the Act all relevant persons are to take into account the principles of the Treaty of Waitangi. This reflects earlier commitments in the former Environment Act and Conservation Act which confirm the relationship between the Crown and the Maori people. In practice, it is also influenced by the pronouncements of the Waitangi Tribunal. A Judge of the Maori Land Court may be nominated as an alternate judge of the Environment Court. Maori issues have proved to be significant in terms of resource management, and Maori claims regarding appropriate use of what they claim as spiritual grounds come into many Environment Court decisions.

4.9 Court procedures: preliminary 4.9.1 Constitution of the court The Environment Court is a court of record. The quorum depends on the issues involved but is generally one Judge and one Commissioner sitting together, or one Judge sitting alone where declaration/enforcement matters or certain procedural items are at issue101. A Judge sitting alone may make various procedural orders including, for example, production (or discovery) orders. The Principal Planning Judge may also allow a Commissioner sitting alone to undertake certain functions.

98

Board of Inquiry into the Proposed New Zealand Coastal Policy Statement, Memorandum dated October 6, 1993. 99 JR Milligan, “Pondering the While” in Terra Nova, May 1992. 100 They include matters such as the preservation of the natural character of the coastal environment, outstanding natural features and landscape, significant indigenous vegetation and habitats, public access to water the Maori relationships with ancestral lands and assets. 101 RMA 1991, s.265. The Court has sole discretion as to its constitution, and its constitution may not be questioned in proceedings before the court or in another court: s.266.

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In practice the members of the Court, even for relatively simple matters, sit as “divisions” or groups in multi-member sittings. Although a Judge presides at a court sitting, the Commissioners are full members of the Court. They are not like technical court assessors, present only to advise on technical matters. They are expected to take a full part in the proceedings and in decision-making, and to bear collegiate responsibility with judges for each decision. In practice the judgement is normally drafted by the Judge, but every member of the Court has a vote, and is entitled to express dissent if so moved. There is only one case of which we are aware in which the Commissioners combined to outvote the judges sitting on the bench. In the most recent amendment to the RMA in 1996, it was provided that Environment Commissioners should be able to hear and determine proceedings without the presence of an Environment Judge, but only where the parties consent to this situation.

4.9.2 Jurisprudence The Court is not formally obliged to follow precedent, and according to the judges themselves, it does not feel bound by its own case law. Nonetheless, it is apparent from the submissions made to it, and the arguments advanced at hearings, that lawyers practicing in this jurisdiction believe that the Court will at least be strongly influenced by its previous decisions. Inevitably, some judges are seen to be more strongly influenced by the values of consistency and precedent than others. There is a remarkable range of literature available to New Zealand resource management practitioners (and in turn for the Court). There are two competing sets of environmental law reports, and also two competing loose-leaf services which provide monthly updates (including one on CD Rom). The judges make extensive use of these services. There are also several series of reports, and specialist periodicals dealing with the RMA. The Court itself makes an effort to promulgate news of its work. It was the first court in New Zealand to establish a home page on the Internet.

4.10 Institution of proceedings 4.10.1 Pleadings Proceedings are instituted by a Notice of Appeal, in a form provided in the Resource Management Act (Forms) Regulations, 1991. This notice is in writing, and must contain the name, address and other contact details of the appellant. Other matters to be included are the status (whether applicant or submitter), the name of the decision maker, the reason for the appeal, and the nature of the relief sought before the Environment Court. The attachments should include: 

a copy of the resource consent application or provisions of the Plan to which the appeal relates;



the decision to which the appeal relates;



other relevant documents;



names and addresses of those to be served with the appeal.

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The notice must be lodged within 15 days of the council’s decision, containing the original notice of appeal and four copies for the Court, along with the prescribed fee. This is a one-off fee of $55 (less than £30). Appeals may be served by hand, by mail or by facsimile. A waiver of the 15-day period may be obtained if other parties agree and/or the Court feels that they will not be unduly prejudiced by the waiver102. Within five working days of lodging the appeal, a copy of the notice must also be served on: 

the applicant, if not the appellant, for the resource consent;



any person who made a submission on the application for consent, or on the relevant portion of the plan in question.

That person or body then has 20 working days within which to lodge a reply with the Court. This is an initial response to the matters raised in the appeal.

4.10.2 The information letter Every party who issues proceedings with the Court will receive an information letter on the ADR options open to him before he goes to the Court. There is no power for the Court to force the parties to mediate, but the letter offers the free services of one of the Commissioners of the Court, some of whom are specially trained in mediation/conciliation. That member is then disqualified from participating in any subsequent formal hearing in the matter, unless the parties consent, and the member and the Court are satisfied that it is appropriate103.

4.10.3 Interim orders The Court has power to make various interim orders, including: (1) Where multiple consents are required for a particular consent proposal, and the Court has jurisdiction under those various enactments, the Court will normally postpone an appeal hearing under one of the enactments until the first instance decision under the other enactment has been given. (2) Where two or more applications for resource consents have been made in relation to the same proposal to a consent authority, the authority is to hold the hearings together unless it can sustain the opinion that the matters are so unrelated that it is unnecessary to hear and decide the applications together, and the applicant agrees that a combined hearing need not be held104.

102

RMA, s.281(3). RMA, s.268(2). 104 RMA, s.103. 103

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(3) Where application is made by another party against the appellant or the applicant in enforcement proceedings, an order may be made requiring security to be provided to secure the applicants costs in the event of an appeal or enforcement proceedings being unsuccessful and an award of costs being made against the unsuccessful party. This is a matter in which the Court retains a discretion, and a strong case needs to be made before the Court will be prepared to exercise that power. (4) The Court has the power, in its discretion, to order the adjournment of hearings. However, particularly with the advent of more assertive case management in the New Zealand system, the court is reluctant to allow adjournments, and a party could find that the priority of the case was lost, or possibly face an award of costs if a late adjournment is sought105.

4.10.4 Pre-hearing meetings The Court makes extensive use of pre hearing meetings, and what it calls “issues conferences” in the conduct of its affairs. They are a central part of its case management regime, and are sanctioned by the Act106. Pre-hearing conferences encourage parties and their lawyers to narrow the issues and prepare properly for an efficient and orderly hearing. The primary aim is usually to eliminate as many of the preliminary issues as possible in advance of the full hearing, and the Court may seek either to have the parties’ experts reach common ground on some points (which the Court feels should not be on dispute at the main hearing), or suggest the suitability of some of the issues involved for mediation. The conference is also used to fix the dates by which statements of evidence should be submitted, the order in which parties shall appear or cross-examine at the hearing, the consolidation of evidence and submission by parties sharing a common interest and requiring further and better particulars of any evidence. Other issues which may be covered include: (1) standing: any party seeking to be heard at the full hearing is expected to attend or be represented at a pre-hearing conference. Any non-submitter seeking to be heard at the hearing can also use the conference to state why he should be heard, and to demonstrate that he represents “some relevant aspect of the public interest”107. (2) Timetabling: the Court will also use the conference to deal with more practical matters such as the most appropriate timetabling of the matter, and will hear applications for urgency. The Court has a statutory duty to set down a matter for hearing as soon after lodging as is practicable, and will try to achieve this within the limits of its timetabling arrangements.

105

Under RMA, s.285. RMA, s.267. 107 RMA, s.274. 106

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ENVIRONMENTAL COURT PROJECT: FINAL REPORT (3) Location: the Court is obliged under the RMA to hear matters as close as possible to the actual location in question, and this may be a matter for prehearing consideration with the parties. (4) Issues of proof: by reminding the parties of any failure to agree upon what may be undisputed facts, of the costs to others of their doing so and of the possibility of their being ordered to contribute to those costs, the Court seeks to shorten the length of its full hearings.

The Court is willing to make use of telephone conferences between the parties, in order to save on expenses, where the cost of bringing the parties together before the hearing cannot be justified. This is often be the case when the parties involved are from remoter rural areas or not within easy reach of regular Court sittings.

4.10.5 Written representations There is no equivalent to the British system of written representations, and hearings are the norm although occasionally the Court is able to decide matters on paper. One instance is in relation to the award and settlement of costs. This follows an invitation to the parties to make written submissions, and in this event the matter is determined on the basis of the written submissions and there is no hearing.

4.10.6 Evidence Since the hearing before the Environment Court is a hearing de novo, it requires full documentation, and arrangements for securing this must be made well in advance of the hearing. Except in relation to matters in which a question of primary fact is in issue, the Court requires a written proof of evidence to be provided in advance of the hearing. Each party must have available, and send to the Court and to all other parties not less than five working days in advance of the hearing, sufficient copies of the statements of evidence of those witnesses whom the party intends to call. If these are not made available, the parties in default may be ordered to pay costs on an adjournment. The process is designed to remove the element of surprise, which the Court states “does not contribute to rational decision making”. It also has the function of ensuring that the parties address the key issues in the case. The Court expects certain standards in respect of expert evidence, and parties tend to go to great trouble and expense to meet these expectations. Documentation, including exhibits, and the bundles of documents, is in line with High Court standards.

4.11 Hearings in the Court 4.11.1 The character of the proceedings Any appeal to the Court is a hearing de novo. The Court has “the same power, duty and discretion in respect of a decision appealed against, or to which an inquiry relates, as the

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person against whose decision the appeal or inquiry is brought”108. The original decision is simply vacated, and the Court’s procedure requires a complete rehearing. There has been widespread criticism of this requirement, particularly because it is not possible to bypass the Council hearing stage, even in the largest of cases where it appears from the outset that the matter will go to appeal. Such a power did exist under the now repealed National Development Act 1979, which provided for a highly controversial “fast-track” procedure for major national projects, but that was not an encouraging precedent, and belongs to the now discredited “think big” era of New Zealand politics. Nonetheless, the Government has now decided to change this arrangement. The Minister of the Environment complained in September 1998 that: “The existing system of a quasi-judicial hearing on the facts in front of a council hearings committee followed, on appeal, by a further hearing on the facts in front of a specialised Environment Court is a curious one and has no parallel elsewhere in the legal system. There is no doubt that the opportunity for de novo appeals (ie the rehearing of all evidence on appeal) adds significantly to the cost of the process and, more importantly, provides a major source of leverage for those with an interest in prolonging matters or simply scaring off potential applicants who know that their pockets don’t extend beyond round one. Furthermore, going through the motions of a council hearing when all parties agree that they are merely rehearsing for the inevitable appearance at the Environment Court seems to me an utter waste of time.” He subsequently conceded: “the arguments against removing de novo appeals are also very compelling. I think a strong case can be made for leaving the appeal rights as they are at present but there should definitely be an opportunity for direct referral. I also believe that greater use should be made of commissioners.”109 The Minister’s preference for a right of direct referral reflects the fact that the two original proposals were closely linked. It would be possible to restrict appeals to the Environment Court to points of law only if there had been a full and fair trial already of the issues of fact, and that would not always be easy to ensure in front of a politically organised group of local authority councillors. Hence, if the de novo hearing were to be retained in the Court, the only way of avoiding the dual hearing requirement of the present system would be to by-pass the local authority hearing altogether in cases likely to go in any event to the Court, and simply have them referred directly to the Court. The outcome of the process of consultation that has taken place around this issue has been an amendment, proposed in the 1999 Bill, to allow the applicant, with the consent 108 109

RMA, s. 290. Environet 24 (November 30, 1998)

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of the authority (or the Environment Court itself if it considers it appropriate), to refer the application directly to the Environment Court without a council hearing being held110.

4.11.2 Formality Although the Act provides that the court’s proceedings “may be conducted without procedural formality where this is consistent with fairness and efficiency”111, our impression is that, in terms of formality, there is little difference between the Environment Court and the British High Court. True, there is a more informal layout in the courtrooms themselves, and nobody wears wigs or gowns, but in terms of the substance, there is little difference. The attitude of the Court appears to be that while a certain level of accessibility is to encouraged, the public should not be allowed to lose sight of the judicial nature of proceedings, and must be encouraged to have an appropriate level of respect. The predictability of procedures in these somewhat formal proceedings is felt by the Court to be fairer to parties who are not represented by lawyers and who are not themselves familiar with court proceedings.

4.11.3 Appearances There are broad rights of appearance. Although, as we have seen, the right of appeal itself is normally confined to the applicant and any “submitter”, rights of appearance at the hearing are conferred also on “any person having any interest in the proceedings greater than the public generally”112. Provided they give at least 10 working days notice prior to the commencement of the hearing, such persons may appear at it and may call evidence. The order of proceedings is at the discretion of the Court113. In an appeal case, the Court will normally call upon the appellant to state his or her case and to adduce evidence in favour of it. Next, it will call the body whose decision is being appealed against to present its case. Then it will call upon those parties who oppose the grant of the consent, approval or right to present their case. The order of appearance is not meant to imply any burden of proof on the party seeking to alter the status quo. There is no burden of proof on the first instance decision maker, and the Court stands in the shoes of the decision maker in reaching its own conclusions.

4.11.4 Evidence The Court has broad discretion in the admissibility of evidence: it may receive anything in evidence that it considers appropriate to receive, and it may also call for evidence which it considers will assist it114. The practice notes of the Court provide some guidance as to what will be admitted, and general approach of the judges is to ask whether the evidence is “relevant and reliable”. 110

Resource Management Amendment Bill 1999, clauses 30 and 52. RMA, s.269(2). 112 RMA, s.274(1). 113 RMA, s.269. 114 RMA, s.276(1). 111

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Evidence in chief will normally be given by the witness reading out a written statement of evidence, of which copies will already have been made available to the Court and the other parties. Although evidence may be taken as read, this is done rarely in practice and only with the consent of the parties. The Court is cautious not to compromise the rights of the public to attend and to hear all the evidence. The Act allows the Court to fill any gaps in its own expertise by using specialist assessors to deal with technical evidence. In practice this has never been done, and the judges do not seem to envisage use of the power in the near future. They have an alternative course, which is to suggest to the parties before the Court that further evidence on a given disputed technical point might be helpful. The Court can also make use of a full five-member bench where appropriate. It is not an inquisitorial jurisdiction. The Court does have power to “call before it a person to give evidence who, in its opinion, will assist it in making a decision or recommendation”115, but this is unlikely to be used. The Court would have to find the resources from its own budget to pay for expert witnesses it summoned in this way. There is also a risk that it might be perceived to be taking sides, and acting unevenly between the parties. Cross-examination of witnesses takes place in the Environment Court as it would in any other: the Court and the parties must receive adequate notice of the calling of that witness and cross-examination takes place under oath. No special arrangements apply to cross-examination in multi party hearings, though extra care is taken by the judge to provide adequate protection of all interests at the hearing. Chambers meetings may be arranged to resolve outstanding problems on technical issues, but it seems more common for these issues to be addressed and probably resolved at a judicial or issues conference (discussed above). The Court may, at such a conference, request the parties to have a side meeting to attempt to remove these issues from the primary hearing. The Court rarely has the services of a stenographer to record the evidence. It sometimes uses tape recorders for this purpose, although Court members generally rely on their own notes made as the hearing progresses. This is can be a real practical problem, which can slow up proceedings. Indeed, one of the judges has suffered from repetitive stress syndrome from constant writing. Site inspections are more the rule than the exception in Environment Court matters. We estimate that they take place in about 95% of cases, usually after the hearing has taken place (although the timing is a matter of discretion for the Court). The Court is entitled to accept further evidence from the parties after the close of the hearing and before the decision issues. However this would occur only in the most 115

RMA, s.276(1)(c).

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extreme circumstances, where it is feared that failure to consider this evidence would lead to a serious breach of justice.

4.11.5 Legal representation The majority of cases which are heard by the Environment Court involve legal representation. There are no published statistics, but we estimate that unrepresented parties (as opposed simply to members of the public attending the hearing) appear in perhaps 25% to 35% of hearings. This includes submitters as well as appellants and consent authorities. Whilst legal representation is not required, it does tend to enhance the prospects of success. Parties may be represented by other professionals (planners, surveyors, etc) but this is relatively uncommon. There is a preference for legal representation in order to secure better pre-hearing preparation and a sharper presentation of the issues. Indeed, the Ministry for the Environment’s publication on how members of the public can limit their exposure to costs in any given case urges the engaging of a lawyer. But costs are high. A relatively small number of law firms specialise in resource management work, which is a highly specialised area. Where a party is not represented, the Court is tolerant towards lay litigants, though patience can become stretched. Experienced public interest groups are usually able to handle their own high profile cases. It is common practice for lengthy legal submissions to be submitted to the Court in writing, but nonetheless to be read out in full by the advocate.

4.11.6 Public participation in proceedings The Resource Management Act establishes public rights of participation before the Environment Court. The Act allows the Minister, the local authority, any party to the proceedings and any person “having any interest in the proceedings greater than the public generally, [or] any person representing some relevant aspect of the public interest”116 to appear and call evidence. While this may look as if it grants open standing in all matters, this is not the case and the Court must deny standing in appeal matters to those who have not made earlier submissions, or who cannot then show that they have an interest greater than the public generally. Any person who is not a party to the proceedings must give at least 10 days notice to the Court of a wish to appear and be heard at the hearing. All hearings are held in public.

4.11.7 Settlement by the parties The parties may settle a matter before the actual hearing, or may come to the Court to seek its blessing in the form of a consent order. The Registrar must be notified as soon as possible of that course of action, and submit the proposed text to the Court, signed by

116

RMA, s.274, as amended by the Resource Management Amendment Act 1996, s.13.

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the parties, with an explanation of what is required. If the detail is sufficient, the Court may dispense with appearances and grant the consent order without a full hearing.

4.11.8 Decisions of the Court Every decision of the Court must be provided in writing117. Both the council (or consent authority) and the Court have a statutory obligation118 to provide reasons for their decisions. Reserved decisions of the Court are handed down to the parties, and not read out in Court. In some cases, an ex tempore decision will be provided immediately and a written decision will follow some time later. The extent to which the decisions of the Court are reported and analysed suggests that full decisions with reasons are widely expected. Whether or not a decision is pronounced orally in court, all decisions are issued in writing and made public.

4.11.9 Appeals to and from the Environment Court Where there is a possibility of an appeal to the Environment Court, no person may apply to the High Court for judicial review unless that initial right of appeal has been exercised and a decision issued by the Environment Court119. At any point in proceedings before it, the Environment Court may order that a point of law be referred to the High Court for determination120. Any party to proceedings in the Environment Court has a right of appeal to the High Court121. There is no requirement to obtain leave to appeal. The appeal is restricted to a point of law. There is no appeal on matters of fact, but it is, of course, an issue of law whether or not any irrelevant matters of fact were considered by the Court, or whether there was evidence which could reasonably support its findings of fact. Notice of appeal must be lodged with the High Court Registrar within 15 working days of the decision of the Environment Court, and must specify the decision, the error of law alleged, the question of law to be resolved, and the grounds of appeal122. The Environment Court is not a party to appeal proceedings against its decisions, although it may be compelled by the High Court to lodge with that Court a copy of the record or a further report setting out any relevant matters not set out in its decision123. This means that it has no right of appeal against High Court orders. Those persons who were party to, or appeared at, the original Environment Court hearing may appear at the High Court hearing, but must give 10 working days notice of an intention to appear124.

117

RMA, s.297. RMA, Sched 1, Pt 1, para 10 (plan submissions); s.113 (resource consents); s.290(1) (Court under same duty as body from which appeal taken); s.297 (writing requirement). 119 RMA, s.296. 120 RMA, s.287. 121 RMA, s.299. 122 RMA, s.300. 123 RMA, s.303. 124 RMA, s.301. 118

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A further right of appeal lies, with leave, from the High Court to the Court of Appeal125.

4.11.10 Costs The issue of costs has proved difficult. The Court has a general discretion to order any party to pay to any other party such costs or expenses incurred by the other party as the Court considers reasonable; and the power extends to requiring any party to pay to the Crown all or any of the Court’s own costs and expenses; it also applies in cases where a hearing has been aborted126. There is no general rule that costs should follow the event, and each case is assessed on the merits, having regard to the circumstances of the particular case. The Court’s practice varies depending on the parties and the types of matter before it: “Costs have been awarded against Ministers of the Crown, trade competitors and businesses, as well as individuals and groups whose appeals have been unsuccessful. Councils have also had costs awarded against them, where their decisions have not been upheld by the [Court] and they have neglected a duty.”127 There is little difference between the cost of an action in the High Court and that of an action in the Environment Court, and there are five criteria to be taken into account when making significant awards of costs: (1) where arguments are advanced which are without substance; (2) where the process of the court is abused; (3) where the case is poorly pleaded or presented, including conducting a case in such a manner as to unnecessarily lengthen the hearing; (4) where it becomes apparent that a party has failed to explore the possibility of settlement where compromise would have been reasonably expected; (5) where a party takes a technical or unmeritorious point of defence128. Hence, the general rule is that costs lie where they fall. Costs are not awarded as a penalty for instituting or opposing proceedings. An award of costs is a means of partly compensating other parties when one party has failed to act responsibly. Costs are less likely to be awarded in proceedings on territorial or regional plans, where there is a high level of public interest. However in appeals coming before it to do with the granting of, or the conditions attached to, a resource consent, the Court has proved more willing to award costs against the losing party, especially where the party involved had been given adequate notice of the possibility of such an award. In the majority of cases in which costs have been awarded, the court had previously warned of the likelihood of such an award.

125

RMA, s.308. RMA1991, s.285 (as substituted by the Resource Management Amendment Act 1993.) 127 Ministry for the Environment, Awarding of Costs by the Planning Tribunal (Working Paper 5; 1996), p.3. 128 DFC NZ Ltd v Bielby [1991] 1 NZLR 587. 126

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In enforcement cases, costs normally follow the event 129. The quantum of costs awarded is in the discretion of the Court, and in practice averages out at around one-third of incurred costs. The exposure of individuals for the costs of an action was mitigated by a 1995 amendment to the Act which allows groups of individuals to incorporate after the initiation of proceedings and before the actual hearing, and thereby incidentally limit their exposure to the extent of the capital of that association. The Court’s practice is that voluntary organisations are not excluded from paying costs, and that they are not entitled to costs on the basis of their paying constituent members of the organisation but only for the expenses of presenting their cases130. A number of interviewees commented that the increase in costs in the system in recent years had less to do with the actual legal fees of representation than with the increased level of preparation costs for hearings. These costs can be of two main types:  greater consultation with the community, resulting in longer waiting periods for projects and consequent tying up of considerable funds;  the stricter requirements for environmental assessments of the impact of the project and the accompanying expert reports.

4.11.11 Legal aid The Legal Services Act 1991 provides that individuals at a certain income level should be entitled to free legal aid. However, the definition excludes associations, and therefore conservation groups, from the scheme. For individuals, there is a means test which is strictly applied by the Legal Aid Board. In recent years the funding for legal services has been cut back and the result, in practice, is the almost total exclusion of environmental matters from such assistance. Therefore, those wishing to take action under the RMA or other legislation are faced with the prospect of meeting their own costs in full, and possibly the costs of other parties. The absence of legal aid is perceived by most of the main players as a major defect of the RMA system, undermining the political promise to facilitate full public participation in the resource management process. A report published by the Ministry for the Environment in 1996 included some press headlines which capture these concerns, such as “RMA – Rich Man’s Act”, and “Tribunal requires ‘unreasonable objectors’ to pay $10,000 costs”. Conservation groups lobbying for increased legal aid argue that the need is not just to meet legal expenses, but also for research and the commissioning of expert reports. They maintain that it is pointless funding parties to argue the legal aspects of an argument,

129 130

Rowell v Tasman District Council M14/96. Ministry for the Environment, Awarding of Costs by the Planning Tribunal (Working Paper 5; 1996)

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without providing the expertise to back up that case, and that failure to do so will result in leaving corporate bodies and, to a lesser extent local authorities, unchallenged.

4.11.12 Alternative dispute resolution The Resource Management Act provides that, for encouraging the settlement of proceedings, the Environment Court, with the consent of the parties, may ask one of its members or another person to conduct mediation or conciliation designed to facilitate the resolution of any matter131. For that purpose, Environment Commissioners have had training in mediation skills and their services as mediators have proved successful in numerous cases. Of 121 mediations undertaken by Commissioners in the year ended June 30, 1998132, 46 cases resulted in consent orders. In many of the remaining 75 cases, even though settlement was not achieved, the Registrar reported that the discussions had led to a narrowing of the issues, and a reduction of Court hearing time as a result133. Further training programmes are now being developed for Commissioners in the belief that demands upon them will increase and they will need a consistent and appropriate mix of mediation skills.

4.11.13 Special cases No special procedural rules apply to matters involving Government departments, public agencies, tribal groups or local authorities, either under the specific provisions of the legislation or as informally applied by the Court. However, the overriding obligation to have regard to Maori culture and traditions, and the Treaty of Waitangi, has been a major influence on policy and practice in resource management.

4.12 Volume of business 4.12.1 Overall case flow The Environment Court has been through a peak in workload in the past three years. The number of cases filed in the year ending June 1996 was a dramatic increase on the previous year, and although there has been a falling away since then, the current level is still significantly higher than it was before 1996. The figures are set out in Table 5.

Table 5: Workload of NZ Environment Court Year 1992 1993 1994 131

Filed 833 854 954

Disposed 1102 925 696

RMA, s.268. The figure is up from 64 cases in the preceding year. 133 Report of the Registrar of the Environment Court to June 30, 1998, p.9. 132

Sitting days 362 341 332

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147 1793 1392 1221

1082 1198 1161

403 411 366

Source: 1997 Report of the New Zealand Judiciary, Part V. Of the 1996 peak, a significant proportion of the work came from Auckland, the country’s largest city. For example, 383 references were received in respect of the District Plan for the isthmus section of Auckland City, and a further 69 in respect of the Plan for the neighbouring North Shore district. It has not proved possible to disaggregate the data as between the type of bodies involved such as interest groups, local authorities, central government, corporate bodies and private citizens; nor is there any disaggregation between issues or sectors. The Table shows that there was no corresponding increase in the number of sitting days. The number of reasoned decisions issued by the Court has remained more or less constant over the years. These are usually decisions of multi-member benches, often in complex or lengthy cases, involving numerous issues. The decisions sometimes run to over 50 or even 100 pages of closely reasoned analysis. In some cases, the one decision will dispose of several appeals.

4.12.2 Interim orders Some 38 applications for interim orders were received by the Court in the year up to 30th June 1996, and these were accorded high priority. Eight orders were made by the Court on the day, seven on the following day and seven within five days. The remaining 19 were listed for hearing after initial consideration by a judge, and from these a further eight orders were made.

4.12.3 Criminal matters The majority of environment-related prosecutions relate to illegal discharges of contaminants onto land or waterways. There have also been a number of prosecutions relating to the clearance of native forest and protected trees, and in the year ending 30th June, 1996 penalties that included fines of up to $30,000 and periodic detention were imposed by the District Court. Table 6 shows the level of prosecutions from 1992/3 to 1995/6, and also shows where the matters were heard. It illustrates the logistical problems of allocating an Environment Judge to cover every criminal prosecution filed throughout New Zealand, but this remains the practice for all but the relatively minor cases, which are taken by ordinary District Court Judges. Table 6: Resource Management prosecutions filed 1992/93 Whangarei 1 Auckland 16 Opotiki 1 Tauranga 3

1993/94 Auckland 14 Pukekohi 1 Hamilton 3 Tauranga 6

1994/95 Whangarei 1 Auckland 28 Pukekohi 1 Thames 5

1995/96 Whangarei 228 Auckland 122 Waihi 4 Putaruru 3

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Hawera 3 Wellington 2 New Plymouth 2 Christchurch 4 Balclutha 1

Whakatane 2 New Plymouth 4 Masterton 7 Wellington 4 Ashburton 1 Greymouth 2 Alexandra 2 Invercargill 2

33

48

Hamilton 2 Te Awamutu 4 Morrisville 1 Putaruru 1 Te Kuiti 4 Whakatane 5 Tauranga 2 New Plymouth 1 Hawera 2 Napier 1 Feilding 1 Palmerston North 2 Masterton 1 Wellington 10 Westport 2 Christchurch 14 Invercargill 3 91

Whakatane 15 Tauranga 2 Rotorua 24 New Plymouth 6 Napier 16 Palmerston North 8 Wanganui 1 Wellington 14 Blenheim8 Nelson 5 Greymouth 5 Christchurch 12 Timaru 1 Dunedin 5 Queenstown 33 Invercargill 3

315

4.12.4 Appeals from the Court For every 100 reasoned decisions which the Court issues there are approximately 10 appeals to the High Court. Of these about three eventually make it to the hearing stage, and only one will be allowed by the High Court to any significant extent. No figures are available for those cases which then go on from the High Court to the Court of Appeal, but given the leave requirement to get to that Court, we understand that there are very few cases.

4.12.5 Speed of decision-making Neither the Registry nor the Tribunals Office was able to furnish details of the periods involved in each of the stages of the Environment Court processes. However, it is possible to make some broad assumptions from the figures provided in the Tribunals Division Management Plan for the year 1995/96, in which the guidelines specify as a target that 80% of cases should be completed within 12 months of filing. This is the longest target for any of the seventeen tribunals and courts under the jurisdiction of the Tribunals Division, and it reflects the substantial content, complexity and multiple interlocking issues that are often involved in Environment Court cases. In its case management, the Court aims for a period of four months from the making of an application to fixing a date for the hearing, in main centres. Outside the main centres this figure goes up to eight months. These are target figures only, and no statistics are available as to actual attainment.

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4.13 Evaluation of performance It is possible to draw some tentative conclusions on the performance of the Environment Court (and that of its predecessor the Planning Tribunal) on the basis of the objective evidence reported above and the more subjective evidence gathered during a comprehensive series of interviews on fieldwork in the jurisdiction. We were given excellent access, both formal and informal, to Court members and others. Indeed, the study provoked some interest in New Zealand as the first independent study of the operation of the Court. The most striking thing to emerge from the fieldwork, in our view, was the high level of satisfaction amongst a range of players (with quite different interests) with the performance and role of the Environment Court. This is not to say that there are no areas of dissatisfaction with the decisions and operation of the Court, and some of these have manifested themselves in the course of the discussion above. There are clearly several types of problem which could affect the performance of the court, and we identify the following potential trouble spots: 

Resource problems: chronic lack of funding from central government impeding efficient performance;



Structural problems: to do with the legislation within which the Court operates;



Political problems: the risk of the Court’s authority being undermined by politically motivated criticism. Resource management is a highly political area and one reason for the creation of the Court was to remove it from politicians;



Personnel problems: resulting from an inability of the Court to perform its functions due to the shortcomings of its members, either by an inability to deal adequately with the legal concepts which it is faced with, or an unwillingness to stretch itself sufficiently to deal with its caseload.

Overall, our view, based upon what we have seen and the opinions of those whom we interviewed, is that the Environment Court is doing well. The most commonly identified problem is the shortfall of resources. The Court has been thinly stretched, not only across a heavy caseload but also across a large territory. It has struck a balance between swift disposal of business, and satisfying public expectations of openness and accessibility. By British standards, it has lent further in the latter direction than the former, with its continued reliance, almost exclusively, upon oral rather than written proceedings. We turn now to consider the performance of the Court against the evaluative criteria we developed in Chapter 2.

4.13.1 Procedural rationalisation Procedural rationalisation is a strong feature of the New Zealand model, and a major objective of the resource management system. There is a common procedure for plan

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making, a common procedure for applications for resource consent, and a common procedure for appeals. The Act also consolidated and developed the procedures in relation to enforcement, and substituted rights of application to the Environment Court for the previous arrangements in which enforcement orders were available only from the High Court, where there were few judges with sufficient grasp of resource management issues to handle applications effectively. All of this means that it is clear, whenever an environmental or planning matter arises, as to which court has jurisdiction. Only in respect of matters affecting licensing of hazardous substances, and common law claims, is the Court without jurisdiction.

4.13.2 Substantive integration The Resource Management Act introduced a comprehensive approach to land use and environmental planning. Its hierarchy of plans and policies extend to all aspects of the management and use of natural resources, not simply to do with town and country planning. This is a fundamental distinction; planning is superseded by resource management, though the transition from the one to the other has proved difficult and controversial. All former pollution control and nature conservation legislation is swept into the resource management regime, with only relatively minor exceptions134. The regime also extends to crown minerals. Mining had formerly been authorised independently under the Mining Act 1971, subject to a right of appeal to the Planning Tribunal. Mining was then brought within the resource management scheme, so that exploitation of crown minerals now requires resource consent135. This was hailed by conservationists as a major achievement. The separate Crown Minerals Act 1991 established an allocation and access regime to crown minerals among competing applicants, but remains subject to the resource consent process.

4.13.3 Speed and delay As will have been seen above, despite the rationalisation and integration of the system substantial delays remain. Why should this be, and can these answers tell us anything regarding the efficiency of environmental courts? The figures demonstrate that there has been a lengthening in delay in determining matters before the Court. There is no suggestion that is due to poor performance on the part of the Court. It is tempting to regard the problems of delay as being attributable simply to under-funding, but that is not the whole story, and even the Court was quick to suggest that increasing its resources, although a welcome move in itself, would not produce a swift upturn in the dispatch of cases. 134

These include the Hazardous Substances and New Organisms Act 1996 which , as we have already pointed out, is not monitored by the Environment Court. Other examples of separate legislation include the Ozone Layer Protection Act 1990 and the Smoke Free Environments Act 1990. 135 Crown Minerals Act 1991, s.29.

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There have been special problems. In particular, there has been the peak of work arising from the timing of the referrals to the Court of the new district plans. These matters all fell to be considered together, and this led to pressure on the system, particularly because all the local authorities were able to rely upon their old plans over a transitional period to the new plans, but needed to shift to the new system within five years of the enactment of the Resource Management Act. This effect was compounded by the novelty of the legislation and the complexity of the substantive issues that it throws up. The Court’s role has not simply been that of applying established norms and policies in familiar settings, but of charting out the future course of resource management within a legal framework which imposes not only procedural obligations but also novel substantive objectives. Some interviewees suggested that there were other contributory factors. Some feel that the cordoning off of resource management has led to a very small coterie of lawyers, who are largely able to dictate the pace of the system amongst themselves. This, it is felt, has contributed to backlog in the system for a number of reasons, partly because the specialist lawyers, whom everybody wants, are simply unable to handle the volume of work since the Act, but are reluctant to parcel it out. Critics of this development have suggested to us that, amongst themselves, the leading law firms are deciding what takes priority, and they are failing, or do not have the time to adequately address, the mediation and negotiation alternatives provided under the Act, and hence are running cases in exactly the same last minute way that they always have done. This is somewhat ironic, given the perception in the Australian jurisdictions that the specialised (some would say “clubby”) atmosphere of the Planning Bar has been a distinct advantage in speeding the caseload through. Our conclusion is that the New Zealand experience is to a large extent transitional, and that there will be entry over time by sufficiently large number of additional practitioners to a lucrative area of practice, to overcome the shortfall of expertise. It is also likely that the new case management approach, with a six weekly call-over of cases, will make it impossible for advisers to delay matters proceeding on grounds related solely to their own availability. Case management, with its emphasis on ongoing negotiations, mediations and efforts to remove issues from adversarial argument before the Court, will apply pressure to legal practitioners and other expert participants to manage their own caseloads accordingly. Effective case management can also be expected to result in an increased reluctance to countenance adjournments. It will be interesting to observe over the coming years the effect of the more assertive approach on the Court’s throughput rate. Interviewees also identified the conciliatory approach of the Judges as a contributory factor, and suggested that if they were to lean away from attempting to find consensus and ignore the extreme positions that tended to surface during cases, there would be a more rapid dispatch of business. In effect this was a plea for a more traditional style of adjudication, as neutral arbiter in an adversarial system, but it would not necessarily lead

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to decisions that would command public respect, nor would it reflect the special consensual ethos of the legislation. The point does however illustrate the dilemma in which the Court, and indeed the entire resource management process, finds itself. The greater the amount of flexibility, informality and general ease of public access, the longer it is likely to take to arrive at decisions. Delays in the system are not so much in the Court, but in the preparation stages where the requirements of consultation can be extremely time-consuming. Attitudes to speed and delay can have an inbuilt bias, and this must be acknowledged in deciding whether one wants a fast litigation system (based essentially on the traditional model), or a slower more consensus driven approach, which may or may not deliver more stable solutions in the long term. Another reason for the present backlog in the Court’s business is not directly related to the Court or its resources. It is the limited ability of local authorities to deal with the demands made of them during the initial years of the new system. It is widely acknowledged that the Act imposed onerous requirements on the authorities without giving them the resources or time to adapt properly. The problems with local authorities were seen to fall into two categories: (1) They simply lack the expertise to deal with the enormous range of extra functions thrown upon them by the resource management regime and by the massive changes in the very structure of local government; (2) In many cases, they are too political to be able properly to represent the interests of all their constituents, and councillors have been unable to distinguish between their role as members of a consent authority, which is strictly bound by the provisions of Part II of the Act, and a politically accountable council, which may have strong views about development in its area and resent an unelected court taking these “community” decisions. Criticism of local authority performance is endemic, and informs much of the critique that the Minister commissioned in 1998 from Owen McShane136. Yet even that review supports the conclusion that local authority failure was far from universal: the major problems as seen by McShane, and others contributing to the review, lay with a handful of local authorities, with particular political agendas, with overbearing senior staff and councillors who allegedly failed on a regular basis to disclose conflicts of interest. Those considerations seem to underlie the Minister’s proposal to introduce local commissioner hearings in place of councillor hearings at first instance. A related complaint is that the promise of greater public empowerment and environmental justice under the resource management regime has simply raised public 136

The Regulatory Control of Land Use (with commentaries by Guy Salmon, Ken Tremaine and R Nixon: NZ Ministry of the Environment; April 1998)

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expectations to a point beyond that which the system in practice is reasonably able to satisfy. That helps explain the high level of complaint to the Environment Court, particularly in relation to district plans and major development projects.

4.13.4 Costs of the system Of all the issues to recur in the course of the fieldwork, that of the cost of implementing and maintaining the resource management system is the most constant. The costs of running the Environmental Court are a relatively modest part of the costs of implementing Act as a whole. The Court has in fact probably been relatively little changed in terms of its functions and caseload as a result of the Act. For this reason it is not possible to provide “before” and “after” pictures of the costs of the integrated system. However, there is a widespread perception that the new legislation, while widely expected to be expensive, has far exceeded even the initial estimates of taxpayer cost, and particularly at local government level. However, the financial picture is complicated by the fact that the last 10 years have also seen extensive reorganisation of local government, and the costs of that structural change and of implementing the Act are interwoven.

4.13.5 Costs and access to justice The other side of the costs issue is the cost to the parties involved before the Environment Court. Evidence on this is necessarily anecdotal. There is, of course, a wide disparity between the levels of representation and expertise appropriate to the various types of cases and applications before the Court. However, we estimate on the basis of the views expressed by interviewees who paid, or were paid, these expenses, that the level of costs is on a par with those incurred in the High Court. The figures given range between NZ$5,000 and NZ$7,500 per day in court for legal fees alone. Expert witnesses and other costs, such as the parties’ time, must be added to this sum. The legal fees represent the going rate for the leading lawyers in the field, and a small group of specialists who tend to dominate representation in proceedings before the Court. The costs reflect the fact that the mode of conduct of cases before the Court, the extent and complexity of legal argument, and the financial stakes, are all comparable with proceedings in the High Court. Evidence is of a technical nature, the legal arguments surrounding the introduction of RMA are complex, and pleadings and other formalities are correspondingly distinct from those commonly found in the District Court or in a tribunal. The Court deals with issues which have significant financial consequences, and the extent of investment of lawyers and their clients in the case reflects that. It is accepted, by and large, that the type of informality/flexibility associated in the popular mind with tribunals is no longer to be expected with the Environment Court in cases where stakes are high. There is room for informality and flexibility in single-issue cases where the stakes are lower, especially where the parties present their own cases without legal counsel. Nonetheless, a major concern of many groups is the problem of financial barriers to access to the Court, particularly given the perception that local authorities are not always meeting peoples’ expectations. For the business community, it was expected that the

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Act’s approach would deliver a more liberal, less directive and, in their eyes, more development orientated regime. What they had not anticipated was the extent and ongoing nature of consultation required under the Act. There is some resentment of this, which is well captured in the McShane Report, and a fear that the legislation provides too many opportunities for delaying investment projects. The corollary of this is a perception that lawyers are one of the main beneficiaries of the Act. The business community is not slow to protest against the spiralling legal costs of presenting cases before the Environment Court. Local authorities are also concerned with the extent to which legal fees (most of their work is contracted out to private firms) are increasing. However, to a great extent these are costs which could have arisen under the old system, exacerbated by the lack of integration that then existed. The Court has taken an initiative which has helped, or certainly will help in the longer run, the case of developers. That is its recent tendency to use the powers it has under the Act to make costs awards against parties who are unsuccessful before the Court. Several significant costs awards have been made against community groups or individuals who, in the view of the Court, failed to face the inevitable and recognise that their case was going to be unsuccessful. There is naturally strong support in the business sector for the stance which the Court is perceived to be adopting, and a perception that it is already beginning to deter would-be litigants from proceeding to the Environment Court. The down side of this is the question of access to environmental justice. This is the concern of conservation groups and NGO’s. Essentially they are happy with the Act and with the Environment Court, but feel that they are being excluded from participation in decision-making by the cost of the system. It is cost, rather than entitlement, which is now the filter. There is some scepticism about the value of establishing liberal rules of standing and broad rights of consultation, without providing the financial means for parties to enforce those rights. Conservation groups reported to us no argument with their treatment by the Court when they get there, but that they were increasingly reluctant to take the risk of the costs associated with that step. There is some agreement that the only answer is the establishment of some kind of legal aid support structure, whether that be a broad based legal aid network through a range of lawyers, or a network of specialised environmental defenders offices such as exists in Australia. Not all groups support the latter proposition, because they fear that an EDO would pick and choose its caseload, and that a more broadly based legal aid system, which would allow those entitled to aid to use lawyers from a nationwide panel, would provide a fairer system.

4.13.6 Alternative Dispute Resolution Great emphasis is now being placed on ADR in the New Zealand legal system, and particularly in relation to resource management. Expectations are high, not least of the Environment Court. But we encountered some scepticism amongst interviewees, many

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of whom believed that the real opportunities for mediation were more limited than was commonly portrayed. The main points can be summarised as follows: (1) While there is a general belief that the Act provides real opportunities for worthwhile use of alternative mechanisms for dispute resolution, some suggest that many of those cases presently claimed by the authorities as successes for mediation are cases which would probably have been settled in any event by old-fashioned negotiation. It was felt by the practitioners to whom we spoke that the figure of up to 15% mentioned as the present rate of removal of cases from the normal process by mediation is an over-estimate. The proportion of cases subject to ADR is expected to grow substantially in light of the Court’s insistence on consideration of the option as part of case management, and as Commissioners, who services remain available for free, become more expert in this relatively new role. However it should be remembered that the figures do not report all successful use of ADR, because it is also used outside the Court, often to reach novel solutions to environmental problems which do not come near the Court. (2) There is also a general belief that the process is suited only to small-scale disputes, and is not helpful outside the typical neighbour type dispute. This is a notion which can really only be dispelled by successful experience in multi-party and complex cases. Presently, it is a perception that deters lawyers from encouraging its use, rather than pursuing the usual path of litigation where they are used to the routine, and familiar with the approach. (3) The other fear which can only be dispelled by contrary experience is that mediation cannot assure confidentiality for the parties. Some parties sense that the mediation process is a dress rehearsal for the hearing, and that it provides the other parties with helpful evidence to support their position at hearing. It is interesting that confidentiality is not seen as a practical problem in New South Wales which has a longer history of ADR use, and it may be that the New Zealand problems are again transitional. That appears to be the view of the New Zealand authorities, who point to the success of the New South Wales system of mediation as disproving them. They hope that mediation can in due course take away most of the smaller matters, and a considerable number of larger cases, from the Court’s caseload. The desired outcome would be that the Commissioners, all highly trained mediators, would spend most of their time on ADR cases. The Judges would continue to adjudicate cases involving questions of law and principle, other cases where there are many parties or multiple issues, major stakes or difficult or complex questions, and also enforcement cases. In the face of a higher rate of enforcement of resource management laws and a static level of resources, the administrative authorities are hoping that ADR can offer a means of lessening the burden of caseload and/or the spectre of delay.

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4.13.7 Locus standi The liberalisation of the standing requirements in New Zealand appears to have been readily accepted by all the principal participants in the system. As we have shown, the barriers to participation in the Court are now more to do with cost than entitlement.

4.13.8 Expertise and the ability to deal with it We found general confidence in the ability of the Environment Court to deal with the increasingly difficult technical evidence which arises in the matters before it. One problem, not to do with the Court, is the shortage of expert witnesses in New Zealand in certain fields, and the need to bring in competing international experts in major cases is further driving up the cost of litigation. As we have see, the Court does not use its power to call evidence of its own, but prefers to nudge the parties to adduce further evidence where it thinks it would be helpful. Poorly funded interest groups maintain that this disadvantages them, as it allows wellfunded corporate parties in proceedings to function more effectively before the Court. The prospect that Commissioners might fill the gap by bringing highly specialised expertise to the court has not materialised. In contrast to the position in New South Wales, the Commissioners are not yet perceived as making a major contribution to the quality of decisions.

4.13.9 Remedies The Environment Court has a broad range of remedies available to it. It is primarily a public law jurisdiction. The Court has power to reverse a decision of a consent authority, or set aside a provision of a plan, and to make enforcement orders. A number of interviewees indicated that they saw the increased powers of enforcement for the Court as the single greatest change for the Court resulting from the Act. The Court also has a wide range of supplementary order-making powers in support of its general jurisdiction, and a power to commit for contempt of court.

4.13.10 Extent of jurisdiction As has been seen there is a special arrangement for environmental crime under which the Environment Judges sit in the District Court. There is not a heavy caseload. Environmental enforcement is undertaken primarily at the local authority level by way of warnings or abatement notices. When these are complied with, the matter progresses no further. Those matters coming before the Court are instances where local procedures have failed to secure compliance, or where the gravity of the crime requires a prosecution to be brought. The Environment Court does not have jurisdiction in judicial review. We found mixed responses amongst our interviewees as to whether such a jurisdiction could be justified on grounds of rationalisation and efficiency. For some, to give these powers to the Court would remove it too far from the notion of a people’s court137. However, there is a more 137

One commented that the Court was quite superior enough already without the addition of superior Court

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fundamental question as to what cases would come to the Court were it to have such a jurisdiction. Given the breadth of its resource management jurisdiction, there can be few environmental or land-use disputes in which it would have special competence that were not already being determined by authorities or officials from whose decisions a merits appeal would go to the Court. There is no inherent jurisdiction, but only that which statute has conferred on the court138; but that does not mean there is no inherent power, such as a power to prevent the withdrawal of an appeal if that appears to the court to be necessary in order to prevent an abuse of process139.

4.13.11 Special rules of evidence and procedure We have noted above the special rules on evidence and procedure, and their objective of achieving simplicity and informality. But the practice has been different. The element of informality has been lost. The Court’s jurisdiction is not limited by the monetary value of what is at stake. Many issues coming before it are of high national significance. Lawyers representing the parties prefer to approach their task in a well-organised, relatively predictable and efficient manner. Developers and others are spending large sums in legal fees to appear before the Court, and these sums are but a minor element of the sums spent on environmental assessments and other items required of developers under the RMA. In short, the stakes are high and the concepts and evidence is complex. The Court performs as a court of law, not as a public local inquiry.

4.13.12 Decision-making - where does the ultimate authority lie? There is a major distinction between the New Zealand Environment Court and the structure for decision-making in England and Wales. There is no doubt that it is with the Environment Court that the ultimate authority lies. Except in one case, in relation to the Minister for Conservation, there is no question of it reporting to a Minister. That is not part of the New Zealand tradition, which has been to keep politicians out of day-to-day involvement in land-use and environmental permitting. Policies are locally generated, and are interpreted and applied by the Court. The exception arises in the case of the mandatory regional coastal plans, where final decision-making power does not rest with the Environment Court. The Court’s power is limited to making a recommendation to the Minister of Conservation, who makes the ultimate decision. Similarly, in respect of any resource consent activity that has been categorised as a restricted coastal activity, that Minister is the consent authority, and retains the final decision-making power after a recommendation, if any, from the Environment Court. This set of relationships is out of line with the usual allocation of responsibilities under the Resource Management Act, and it reflects an approach closer status. There is a certain amount of disgruntlement regarding the change in name to an Environment Court rather than the Planning Tribunal, the perception being that the judges had pressed for this for the principal purpose of increasing their own status. 138 Department of Social Welfare v Stewart [1990] 1 NZLR 693. 139 MacLean v Auckland City Council [1998] 4 ELRNZ 373.

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to that in England and Wales between the Planning Inspectorate and local authorities (on development plans) and the Secretary of State (on appeals where jurisdiction has not been transferred to inspectors). It raises questions as to the appropriate balance of political and judicial responsibility. Parliament appears to have envisaged that the principles of resource management were likely to be more securely and consistently interpreted and implemented by an Environment Court to which a Minister had a power of submission only, and not of final determination (as with the Minister for the Environment), and the position of the Minister of Conservation runs counter to that principle. Interviewees were unable to identify any reason why that should be so. Indeed, we found a strong preference for leaving the ultimate decision-making power with the Court, rather than transferring any of it to Ministers. The conscious decision has been taken that these matters are ones that affect local communities and should only be made in those communities. It is at the point where that community cannot properly consult and agree, that the decision is moved to the Environment Court arena, for an independent adjudication on the environmental merits of the case. Unfortunately, a major problem with the implementation of the Act, as we have seen, lies in the ability of local authorities to play the role expected of them.

4.13.13 Definition of jurisdiction and the creation of environmental law The jurisdiction of the Environment Court is prescribed by statute, and is reasonably coherently constructed to give the Court an all-round vantage point in relation to the resource management system, which itself provides a conceptually distinct scheme of management and dispute resolution. The Court operates within statute, but that is not to say that it has no innovative capacity. It has been for the Court, for example, to develop the practical application of the objectives of the Act, and particularly to clarify the implications of sustainable resource management.

4.13.14 The treatment of central and local government There is no special treatment of development proposals by any level of government, and authorities are themselves bound by the provisions of the legislation.

4.13.15 The impact of international obligations Special provision is made by the Resource Management Act in respect of New Zealand’s international obligations. It is a ground for a call-in decision by the Minister for the Environment that the proposal may affect, or is likely to affect, or is relevant to, the country’s international obligations on the global environment140. This confers upon the Government the means to secure compliance with the terms of international treaties. New Zealand’s obligations under the Treaty on Global Climate Change was clearly a ground for the Minister for the Environment’s decision to call in the application to construct a new power station at Stratford in Taranaki.

140

RMA, s.140(2)(e).

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The Court takes account of international obligations entered into by New Zealand, on the same basis as the English courts. The obligation can only be binding if it has already been incorporated into New Zealand domestic law, and in no other circumstance can the Court consider it to have binding effect.

4.13.16 Guardianship of the environment This role is undertaken by both the Ministry for the Environment and the Parliamentary Commissioner for the Environment. The Commissioner’s capacity for effective action is hampered by limited finances, and the budget has declined in real terms in the 1990’s.

4.13.17 Balance in the system As we have already pointed out the balance in the resource management system is most subjective, and it is difficult to deal with such a value-laden concept in this brief evaluation. However, bearing this in mind, the following comments can be made. There is a broad degree of satisfaction with the manner in which the RMA process is working, and with the performance of the Environment Court as part of that process. It is early yet for considered judgement, but all the major participants that we spoke to would see the experiment as a qualified success. The major problems are ability at local authority level, and delay in the system. There are complaints that the obligations imposed by the Act are simply too onerous and out of proportion to the ends they seek to achieve. On those issues there is some consensus. On others, the view depends upon the interests of the person or group from which it comes. For example: 

developers and their advisers: the obligations for consultation are more onerous than the old system, where zoning schemes usually provided a clearer framework for investment decisions. This is another way of complaining that the system provides too many opportunities for delay to those who simply want to obstruct the project, whose objections are implacable, and whose case is never likely to succeed. The guilty parties here are not just conservation and community groups. There is a high level of concern with the extent to which trade competitors have utilised the provisions of the Act to prevent or delay their commercial opponents’ projects. As in Britain, the phenomenon seems most common in the retail sector. Their other concern is the delay and cost engendered by the environmental impact requirements under the new regime. It is acknowledged that these would have been introduced independently of the Act, but nevertheless they are seen as an increasingly large component of project cost for new industries. There is concern that the Act’s extensive requirements will scare away foreign investment, which will go instead to other countries in the AsiaPacific region with less onerous environmental obligations.



local authorities: there is a concern the Act has brought more responsibility but no more funding.

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conservation groups: the key problem is access. They maintain that there is little point in providing greatly enhanced locus standi rights and increased flexibility in court procedure if it remains prohibitively expensive to participate in that system. The fear of costs awards is already deterring worthwhile cases proceeding to the Court.

It can be seen from these few comments that the Act has turned out to be something short of a panacea for all the needs of resource management. Perhaps the main difference observed between this and the other jurisdictions in the fieldwork was the sense of consensus on the need for negotiated solutions to environmental issues in the New Zealand system.

4.14 The scenarios 4.14.1 Scenario 1: the highway proposal A proposal to widen an existing highway between two towns, each with a population of about 150,000, to convert it from an ordinary road into a three lane motorway in each direction. The highway crosses local authority boundaries and has attracted significant local opposition. Planning for new roads or altering or widening existing roads, would normally be carried out under Part VIII of the Resource Management Act, using the requirement notice and plan designation procedure. The “requirement” to which this refers is a requirement by another authority (including a designated network utility authority141) to the territorial authority for a designation to be made in the plan for a proposed public work142. The requiring authority would be the authority called Transit New Zealand143, which has as its primary function the construction and control of state highways. Such a project is likely to be one of national importance in New Zealand, and the Minister for the Environment has the discretion to direct that he will call-in a particular application. It is unlikely, however, that the widening of an existing road would give rise to a call-in decision. A requirement notice to designate the wider corridor would be served by Transit New Zealand on the territorial authority, which would be required to invite submissions and conduct a hearing. There is a requirement that such hearings be held in public, unless there are specific reasons to the contrary, and the authority is directed to avoid unnecessary formality. Cross-examination is not permitted at these hearings. The local authority then makes a recommendation back to the requiring authority (Transit New Zealand) and that body would make the final decision, subject to a further right of

141

RMA, s.167. RMA, s.168. 143 Established by the Transit New Zealand Act 1989. 142

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appeal to the Environment Court. The hearing there would be more formal, including a right of cross-examination. The issues involved in a motorway route inquiry were fully examined by the House of Lords in the 1981 Bushell case and the same principles apply under general administrative law rules in the New Zealand context. Of particular importance, however, are the grounds specified in the Resource Management Act, which include whether adequate consideration has been given to alternative sites, routes, or methods of achieving the public work or project and whether the nature of the public work or project means that would be unreasonable to expect the requiring authority to use an alternative site, route, or method144. An Environmental Impact Assessment would also be required in these circumstances, and the procedure is outlined at no. 2 below.

4.14.2 Scenario 2: manufacturing facility on greenfield site A proposal to construct a new manufacturing facility on a green field site adjacent to an existing urban area. The facility will generate emissions to the atmosphere and to surface waters. A local citizens group has been established to oppose the proposal. The zoning type scheme envisaged by the RMA is hierarchical. Although the regional plans are important guides on matters of regional significance, and deal with air emission and water permits, it is the rules in the district plans, prepared by the territorial authorities (city and district councils) that have binding legal force relating to land use, and over the contents of which lies an appeal to the Environment Court. In drafting and adopting the district plans, the opportunities for public participation are extensive, and it is envisaged that discretion in later application of the rules should be tightly restricted. The rules must be reviewed every ten years. In its determination, the Court must have regard to the over-riding principle of sustainable management. The developer will also need a building permit for the work. Building code regulations control the actual physical construction of the facility, in terms of the type of materials to be used and structural strength. Bulk and location standards are determined by the rules in the district plans. The third concern is the emissions issue. The Act envisages three main categories of activity for which one may seek consent, i.e. controlled, discretionary or non-complying, each of which will be subject to different terms and conditions. For example, with noncomplying activities, the applicant is essentially requesting the consent authority to allow an exception to its existing plan. Both the air and effluent discharges will require a resource consent from the regional council prior to the facility commencing operations. There are five main types of resource management consent, one of which is the land use consent referred to above. Here we are also concerned with the water permit and the

144

RMA, s.171(1)(b).

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discharge permit (air discharges and water discharges), which will be granted by the local consent authority. The application should include an environmental impact assessment, whose detail must reflect the scale of the potential effect on the environment. The consent authority has wide obligations of notification and consultation depending upon how the activity is categorised in the regional or district plans, and ultimately the extent of discretion available to the authority in relation to the consent will also be dependent on this. The EIA process is integrated in this decision procedure. The Act prescribes the detail of this procedure, which includes the possibility of a pre-hearing meeting to discuss the merits. Where one or more resource consents are sought, the authority must hear and determine the applications together, unless there are extenuating circumstances. Where consents are required from both the regional council (water, air, coastal), and from the district council (land use), joint hearings are scheduled. On timescale, it is provided that the hearing should be within 25 working days from the closure of submissions, and a decision should be issued in writing within 15 days of the hearing. The criteria to be considered by the authority are specified in the Act, and are based on the sustainable management ethos of section 5. The specific requirements for air and water consents are set out in the regional plans, to which the authority must have regard. In exceptional circumstances the authority may divert from the plan, but the consent is likely to contain a condition requiring the holder to adopt the best practicable means of minimising adverse effect on the environment. All resource consent applications and decisions can be appealed to the Environment Court, not only by the applicant or consent holder but also by any person who has properly made a submission on the application. The time allowed for lodging an appeal is just 3 weeks. In practical terms this may limit the possibility of a national association involving itself in local issues at a late stage, but the local residents in our scenario would have open access both to the Environment Court and to the appeals route from that court. The appeal to the Environment Court is by rehearing of all the evidence. It is more in the nature of a fresh inquiry into the merits than an appeal, with no inherent burden of proof on either side. The Court has the power to review, cancel or change conditions. Possibly the most controversial point is that the Court has a residual power and responsibility to ensure compatibility with policy statements and plans i.e. it is not simply reviewing the legality of the earlier decision. This is in addition to its enforcement capabilities which we shall examine at no. 3 below. The Court may always refer any point of law before it to the High Court for determination. The only appeal from an Environment Court decision is to the High Court on a point of law. This may ultimately be followed to the Court of Appeal.

4.14.3 Scenario 3: breach of discharge consent

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A manufacturing plant which was constructed in the late 1960s in an otherwise urban area is apparently breaching the terms of a discharge consent. Local residents are fearful of the potential implications of this for their health, and wish to take proceedings. Many of the points raised in no. 2 above are relevant also to this scenario. The issue of existing use is addressed in section 20 of the Act, which allows the continuation of activities, otherwise prohibited under the regional plan, so long as that activity was lawfully commenced and the person involved applies for a resource consent within six months of the regional plan becoming operative. From what we have stated at 2. above, the plant, on the assumption that the plan is more than six months in operation, is in breach of the regional plan, and thus its actions constitute a non-complying activity. The regional authority, or other bodies concerned, may use their appropriate enforcement powers by bringing the matter before the Environment Court on an application for an enforcement order. Alternatively, and more likely, an abatement notice may be issued by a local enforcement officer. Failure to comply with this, or with an order of the Environment Court, may result in the Court making an order for civil enforcement. This could allow any person, under sections 84 and 314 of the Act to bring an enforcement application against a territorial authority for breach of its own district plan and rules. It could also allow for the recovery of costs, for example, from an offending party. The Court is able also to issue interim enforcement orders, having regard to the usual criteria, including the ability to furnish an undertaking as to damages. The power also exists for the Court to make a declaration on any matter concerning interpretation of the Act or those plans adopted under it. Any person may apply for these declarations, but only a consent authority or the Minister may seek a declaration that a resource consent condition applying the best practicable option standard is being contravened. Prosecution is through the usual criminal process. All proceedings relating to noncompliance with resource consents are brought in the District Court, where they will normally be dealt with by an Environment Court judge sitting alone in the District Court. This arrangement allows specialist expertise to be injected as required into District Court proceedings, whilst maintaining a standing jurisdiction and making efficient use of the physical and administrative facilities of the District Court.

4.14.4 Scenario 4: toxic tort An adult male claims to have contracted health damage as a result of inhaling smoke borne particles emitted from a manufacturing facility nearby. He wishes to commence proceedings against the owners of the plant. Toxic torts do not fall under the jurisdiction of the Environment Court. Any tort proceedings the individual in this scenario might wish to issue will be taken through the usual civil court system. The Environment Court could, however, entertain an application for an enforcement order under section 314 to prohibit any process likely to be noxious, dangerous, offensive or objectionable and having an adverse effect on the environment.

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In terms of civil procedure and burden of proof the New Zealand common law torts do not differ substantially from the English position. The possibilities also arise here of negligence, nuisance (where a proprietary interest in land is required) and even Rylands v Fletcher in appropriate circumstances. There has, however, been radical reform of personal injury law in New Zealand under legislation dating from 1973 (see now the Accident Rehabilitation and Compensation Insurance Act 1992). This establishes a public mandatory insurance scheme in place of private remedies under the law of tort for personal injury arising out of an “accident”, and creates a general right to compensation for such injuries. It is, however, confined to accidents in defined contexts, and has no significant implications for toxic torts.

4.14.5 Scenario 5: 100 new dwellings on greenfield site A housebuilding company proposes to build 100 new dwellings on a greenfield site that is presently being used for agricultural purposes. The developer will have to apply to the District Council for the appropriate land use and subdivision consents and for the necessary building permits. As an alternative to seeking the necessary land-use consents, the developer could initiate a private plan change to the district plan, to incorporate a tailor-made zone allowing the particular development and subdivision. In the likely event that the proposed development is outside the scope of land-use and subdivision consents unless contemplated in the district plan, it will be necessary for a plan change to be approved to allow for the development of the greenfield site. Under the Act, the requirement is that of sustainable management, and this necessitates a balancing of interests including the reasonable land use expectations of the owner. This balance remains the overriding objective of the Act, of which all courts interpreting its provisions must take account. Recent decisions indicate that incremental urbanisation of rural areas may be approved where the need to accommodate expanding populations is established. The protection of versatile soils in this case is not an absolute resource management priority. There will also be a requirement for other resource consents, depending upon the location of the site. These could include water permits and discharge permits from the regional council, and as stated above these applications should be combined into a single hearing. Prior to that, strict notification requirements to enable wide participation in the process, and any person is entitled to make a submission to the authority. Provision is also made for a pre hearing meeting, from which a report may be circulated before the actual hearing. Similar criteria apply to the decision making of the consent authority under the Act and both the applicant and an objector have the right to appeal to the Environment Court. At any stage in that judicial process the judge may convene a conference to consider pleadings or other issues. Also, with the parties’ consent, the judge may ask a commissioner to conduct mediation, conciliation or other processes which might

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facilitate a resolution. In addition, the Court has considerable discretion over the level of formality in proceedings and the awarding of costs as between the parties (the latter being an important issue in public interest litigation).

4.14.6 Scenario 6: the domestic garage A householder wishes to construct a single domestic garage for personal use adjacent to his dwelling house. In this scenario, a consent will be required from the local authority which could possibly specify the nature of the materials to be used as well as the nature and bulk of the structure. In the event that the garage may be situated in a yard area required to be left open, or that the garage is not accepted to be ancillary to the domestic use of the residential site, a resource consent application may be required. The decision on the consent will be based on the district plan and rules, and whether or not the proposed “development” is in conflict with them. In the sense that this constitutes a change in the use of land, it will require, prima facie, a resource consent application. Certain “minor” activities may be listed in the district plan as not requiring notification, and other activities need not be notified if every person potentially affected by the application gives their written approval, and if the effect on the environment can be categorised as minor. Notwithstanding this, the consent authority has the discretion to require notification in the normal way where this is in the public interest. Apart from this procedure, the application proceeds in the normal way as for any resource consent. Any person may make a submission on the application, a pre-hearing meeting may be arranged and a local authority review hearing may be required at which submissions are presented in public. The decision, with or without conditions, will issue and the applicant has a right of appeal to the Environment Court. A similar right is conferred upon any other person who made a submission in respect of a notified resource consent application. It follows that, if the authority have determined that the application should not be notified, there is no third-party appeal right.

4.14.7 Scenario 7: objections to local plan A municipality has prepared a plan for its area which allows for the growth of the urban area. There are objections to the plan. The hierarchical land use zoning scheme envisaged by the 1991 Act has already been discussed in Scenario 2 above. It is clear that this scenario will involve many of the same issues. The Act establishes extensive obligations for consultation in the preparation of regional plans and district plans, and extensive rights of participating members of the public to be heard in support of their submission at hearings held by the council, and also to refer their complaint to the Environment Court. The Court has wide power to review the provisions of proposed plans, and to set aside or modify those to which

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objection has been taken. The regional council may make submissions in respect of matters of regional significance.

4.14.8 Scenario 8: proposed international airport This will be inescapably an issue of national significance, and the proposal could be “called-in” by the Minister. A board of inquiry is then appointed by the Minister, which proceeds to conduct a hearing in accordance with standard public inquiry procedures. It reports to the Minister, and may make recommendations on the decision. Following publication, public discussion is encouraged in light of the report. The Minister then issues a decision, again having primary regard to the principles of the Act. The success of a resource consent application could be affected by the zoning or other policies in the regional policy statement and the district plan, or proposed plans, which may tend to support or oppose such a major development in the location concerned. An alternative approach would therefore be for the local authority, or the developer of the airport, to seek a plan change at the district level. In this event the Minister’s call-in power would be excluded, because that applies only to applications for resource consent. The usual rights as to the making of submissions and hearings would apply, with the further right of appeal to the Environment Court, and the Court would have the power to seek provide an opportunity for input from further interested parties and to adjourn the hearing to allow arrangements to be made145.

145

RMA, s.293(2).

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5 Chapter 5: New South Wales 5.1 Introduction We turn in this and the following chapters to examine the experience with specialist environmental courts in three Australian states: New South Wales, Queensland and South Australia. The historical pattern has been similar in all Australian states. A system of land-use planning had been introduced incrementally, mainly over the post-war years, under which a permit would typically be required from the local council for certain types of development to be carried out. These systems tended to be a hybrid of a US zoning system and the more discretionary systems found in Europe. For development that accorded with the zoning scheme, no permit would generally be required; but a permit would be necessary for a departure from the scheme, or for a use that the scheme allowed only conditionally. Appeals would lie from the council’s decision to some form of independent board or tribunal, which would be subject to the general judicial review powers of the superior courts; but appeal would not generally lie against a council’s decision to re-zone land. Although the model was simple enough, it became complex by amendment over time, and the differences between the states widened. Poorly co-ordinated legislation established numerous and varied routes of appeal and review, and different routes for challenge by third parties. There was, by 1990, a feeling that the system of land-use control was unnecessarily complex throughout Australia, particularly in relation to appeals, and that it was the cause of much delay and frustration. There was also some suspicion of corruption. A special report was commissioned by the Federal Department of Industry, Technology and Commerce. The report1 urged the creation in each State of what it described as a “Model Combined Jurisdiction”, which was effectively an environmental court. It would be: “an integrated system with jurisdiction to enable the consideration and determination of legal and merit issues, all enforcement applications and prosecutions with a minimum of delay”2. The New South Wales example was used as a model of how such a court might operate, but only Queensland, South Australia and Tasmania3 implemented the report’s 1

Hayes, B and Trenorden, C, Combined Jurisdiction for Development Appeals in the States and Territories Canberra, Australian Government Publishing Service. 1990. 2 Ibid., para. 5, 3 A brief description may be offered of the Tasmanian experience, which is not the subject of a separate chapter in this report. The Resource Management and Planning Appeal Tribunal was established by the Resource Management and Planning Appeal Tribunal was established by the Resource Management and Planning Appeal Tribunal Act 1993 (No. 66 of 1993, as amended in 1998). It has jurisdiction under all planning and environmental legislation in the State that creates rights of appeal or application to the Tribunal. Amongst the most important is the Land Use Planning and Approvals Act 1993 (No. 70 of 1993), s.61, which gives such a right of appeal to disappointed applicants for planning permits, and also to

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recommendations. In addition, Queensland embarked upon a review of its whole planning system, which took many years of argument and controversy before resulting in legislation in 1997 (which was further amended in 1998 before coming into force). The Australian experience is worthy of detailed examination, because it shows how different states have responded differently to the same problems; and the specialist courts that they have set up have now become established, with their own identities and diverse approaches.

5.2 The background to the specialist court New South Wales was the first of the Australian states to make this move. It is the most industrialised and most heavily populated of the states which make up the Commonwealth of Australia. It found itself in the 1970s facing unprecedented pressures of growth and industrialisation, and widespread dissatisfaction with the existing regulatory and appeals structure. Primary responsibility in land regulation matters was with the local councils, but there were many bodies with parallel and appellate jurisdiction. There was a right of appeal from the planning decisions of local councils to a Local Government Appeals Tribunal, but there was overlapping jurisdiction with and between rating boards, local land boards, the Land and Valuation Court (a compensation body and part of the Supreme Court), the Subdivision Appeals Board and the Buildings Appeals Board. This elaborate structure generated confusion and delay, and even greater complexity beckoned as mechanisms came to be designed for controls over environmental emissions. The State Government proved willing to embrace radical reform, and to set up a onestop appellate body which would be, in the words of the then Minister for the Environment and Planning “...an entirely innovative concept, bringing together in one body the best attributes of a traditional court system and of a lay tribunal system..”. The Land and Environment Court was established on 1st September, 1980 by the Land and Environment Court Act 1979 (“LEC Act”) as a superior court of record4. It was to be a specialist court enjoying an integrated jurisdiction. Its foundation was part of a package of legislative reform which included the Environmental Planning and any person who has made any representation, or any relevant agency which made a representation or objection or provided advice. Appointments to the Tribunal are by the Governor of the State. The chair of the Tribunal must be a barrister or legal practitioner of not less than 5 years standing; and other appointments are required to represent expertise in planning, resource economics, science, engineering, medicine, environmental management and industry process operations. Unlike the NSW Court, the Tribunal does have the status of a superior court of record. Before hearing an appeal, the Appeal Tribunal must consider whether the appeal could be settled expeditiously by the use of mediation; and may, on its own motion or on the motion of a party to the appeal, direct the parties to the appeal to mediation using the services of a mediator approved by the Appeal Tribunal. Appeals from the Appeal Tribunal lie to the Supreme Court on a question of law. 4 Other relevant legislation referred to by abbreviation in this chapter includes the Land and Environment Court Rules 1996 (“LEC Rules”); the Land and Environment Court Regulation 1994 (“LEC Reg”), and the Court’s Consolidated Practice Direction 1998, first issued in 1993 and now comprising 13 Directions.

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Assessment Act 1979 (“EPA Act”) and the Heritage Act 1979. The EPA Act introduced procedures for environmental impact assessment, which required government and semistate authorities, when undertaking activities likely to significantly affect the environment, to prepare and exhibit formal environmental impact statements for comment by members of the public. The Act also reformed aspects of the land-use planning system, establishing three types of development plan: state policies, regional planning instruments and local planning instruments. This structure remains in place today. The 1979 package also addressed the issue of public participation. The old system had been widely perceived as being unduly legalistic, and a deterrent to ordinary individuals from pursuing the opportunity to participate in the formulation and enforcement of environmental policy and law. The Court itself was established to deal with disputes arising under all environmental statutes, of which there were some twenty-five. They included measures such as the Waste Disposal Act, the Clean Air Act, the Clean Water Act, and the Environmentally Hazardous Chemicals Act. The various fragmented appeal rights under those Acts were consolidated. The new Court was given broad jurisdiction to deal, not only with all merit appeals relating to all land use and environment issues, but also with all civil and criminal enforcement matters, and judicial review, arising under the same legislation. The Court was also given all the powers that the Supreme Court previously enjoyed by way of judicial review and enforcement of environmental laws. This means that the court consists really of two parallel structures, that of a traditional court, of Supreme Court status, alongside that of an administrative appeals tribunal. As we shall see, this is reflected in the various classes of jurisdiction conferred on the Court. However, it was decided that the Court should not be an integral division of the Supreme Court, but a separate entity on the same level. The purpose seems to have been to allow the court to adopt more flexible working practices which might not have been possible within the constraints of the Supreme Court institutional framework. It is this comprehensive jurisdiction, and the ability of the Court to act both at an administrative appeals level and as a superior Court, which is the hallmark of the New South Wales model. Its jurisdiction is integrated horizontally, in the sense of having exclusive jurisdiction in respect of all environmental and land-use disputes, including judicial review, criminal prosecution and civil enforcement; and it is also integrated vertically, in the sense of having a capacity to determine issues of fact and policy, as well as final determinations of law. Certain advantages could be seen to flow from this. For example, if a point of law arises during a merits appeal, it could be resolved swiftly and without any need for lengthy adjournment whilst the matter was taken to a superior court. In addition, it meant that whatever orders were needed, such as injunctions or restraining orders of various kinds, could all be made at one sitting.

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5.3 The role of the Court 5.3.1 Constitution and establishment The Court presently has five judges and nine technical and conciliation Assessors. The Court’s jurisdiction is conferred in seven classes, outlined further below. Judges preside over all matters in Classes 4, 5 and 6 of the Court’s jurisdiction, and can hear all matters in each of the other jurisdictions. Assessors hear merit appeals under Classes 1, 2 and 3 of the jurisdiction and also may conduct conciliation conferences under section 34 of the Act. Judges and assessors may also sit together as a multi-member panel when the complexity of the case demands it. Table 7: New South Wales—judges and assessors

What is the difference between a Judge and an Assessor of the Land and Environment Court? An Assessor is an officer of the Court who has had extensive experience in environmental planning, local government, engineering, architecture, building construction or a related field and who conducts conferences and hearings. A Judge has the same powers as an Assessor, but can also grant an injunction. An injunction is an order to stop someone from continuing to act. For example, an injunction may be issued by a judge to stop building work while a case is being heard. A Judge can also convict people for criminal offences. A Judge is addressed as “Your Honour”. An Assessor is addressed as “Assessor”. The Registrar is addressed as “Registrar.” From: the Land and Environment Court web-site

5.3.2 Judges The judges are appointed from the bar of New South Wales5. Judges are usually chosen from the Planning Bar, but this is not a universal rule and a number of high profile appointments have been made from the general Bar. As with other appointments to high judicial office, the appointment is made by the Governor General of the State who acts on the advice of the Attorney General of the day. There is no process of public scrutiny or consultation. Early fears that it would be difficult to get persons of high standing to take up positions in the Court have not been borne out. Indeed, two judges of the Court have subsequently been appointed to the Court of Appeal of New South Wales. Judges are given full tenure when they are appointed. Retirement age is 72 years, with 6 months leave for every five years of service. The judges are paid at Supreme Court 5

The legal profession in the State follows the English model of retaining a divide between barristers and solicitors.

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rates6. One of the judges is appointed as Chief Judge, which carries no special statutory powers but does involve a heavy administrative load, including responsibility for overseeing case allocation and dealing with managerial and budget issues. There is no special training scheme for new judges of the Court, and the extent of inhouse training they receive depends rather much on the individual and the level of experience which he already has, not to mention the caseload of the Court. It has been known for a new appointee to sit immediately. Some will have had experience as an acting Judge, and many have had considerable experience of the Court from acting as counsel before it. The new judges attend a special week-long Judicial Commission training course during their first year, and often spend some time sitting with and observing other judges at work before taking their own cases. The Court has its own Education Committee for training purposes, and it also organises an annual conference on matters of particular relevance to the Court. Many of the judges and assessors have undertaken extra-judicial speaking engagements about various aspects of their work on the Court. Caseloads are very difficult to predict although it is to be expected that members will have 3 or more reserved judgements at any given time. The Court’s emphasis on speedy decision-making ensures that reserved decisions are kept to a minimum, and the Court will issue ex tempore judgements where possible. Given the median disposal figures below, it can be seen that writing up times are in practice quite short.

5.3.3 Assessors The process for appointment of technical and conciliation assessors is more open. The Act7 specifies the expertise that their appointments are expected to bring to the Court. They are set out in the Table below. Table 8: criteria for appointment of assessors in NSW (a)special knowledge of and experience in the administration of local government or town planning, (b)suitable qualifications and experience in town or country planning or environmental planning, (c)special knowledge of and experience in environmental science or matters relating to the protection of the environment and environmental assessment, (d)special knowledge of and experience in the law and practice of land valuation, (e)suitable qualifications and experience in architecture, engineering, surveying or building construction, (f)special knowledge of and experience in the management of natural resources or the administration and management of Crown lands, lands acquired under the Closer Settlement Acts and other lands of the Crown, or (g)suitable knowledge of matters concerning land rights for Aborigines and qualifications and experience suitable for the determination of disputes involving 6 7

Currently $187,850 per annum. The Chief Judge is paid $194,385. Land and Environment Court Act 1979, s.12.

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Aborigines. Recruitment is by way of an advertisement placed in the main daily papers, and a shortlist of applicants for interview is made by the Chief Judge. The interview panel includes members of the Court, including the Chief Judge, the Senior Assessor and a senior officer8 of the Attorney General’s Department. Appointment as an assessor is for seven years in the first instance. In practice, with to date only one exception, all are reappointed as a matter of course. The retiring age for the assessors is 65 years. The salary of assessors is lower than that of the Judges9. One assessor is appointed Senior Assessor, which is primarily an administrative post. The respective jurisdiction of judges and assessors is statutorily defined, and is described below in the outline of the various heads of jurisdiction. The principal function assigned to assessors is hearing merit appeals in planning, building and valuation matters, for which they usually sit alone. Disposal after hearing is swift: the majority, between 75% and 90%, of assessors’ decisions are delivered ex tempore.

5.3.4 Relationships with other bodies There are no special relationships between the Court and other bodies in the planning and environment area. There is no equivalent in New South Wales to the office of the Environmental Commissioner in New Zealand. Nor is any particular policy or legal relationship between the relevant Ministry, the Department of Urban Affairs and Planning, and the Court. The Court is independent from the State Government.

5.3.5 Ministerial call-in There is, however, a particular statutory power of call-in, exercisable by the Minister. This allows the Minister to order that any particular application should be removed from the jurisdiction of the council or, as the case may be, the Court. The power to give development consent may be taken altogether out of the hands of local authorities. There are three means of achieving this. First, in the case of an application relating to any of the special categories of development defined as “designated development”, the Minister may require an inquiry to be held by a Commission of Inquiry into the environmental aspects of the proposed development10. The Minister then makes the final decision. Second, there is a broad call-in power where the Minister concludes that this is expedient in the public interest “having regard to matters that in the Minister’s opinion are of significance for State or regional environmental planning”11. This is the most commonly used power, even in relation to “designated development”. The Minister has 8

The Statutory Appointments Officer. Current salary is $110,830; rising to $117,295 for the Senior Assessor. The Assessors have pursued an application to the Remuneration Tribunal for a salary increase, on the ground of the relative responsibility of their position compared with others in the judicial and tribunal hierarchies, but were awarded only a modest increase. 10 EPAA, s.119. 11 EPAA, s.88A. 9

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advised local councils that certain categories of development will always be called in under this power, including new coal mines and canal developments; and specific directions for different areas of the State are issued where this is felt to be necessary. Third, there is a “fast-track” power conferred on the Minister under 1985 amendments to the EPAA, which allow him to call-in and determine applications for consent to carry out what would otherwise be “prohibited development”12. This is effectively a power to by-pass the usual procedures. But its effect in practice is limited. The Minister must take a considered decision that its use is in the public interest, and in most cases the matter will need to be the subject of an inquiry by the Commissioners of Inquiry. There is therefore limited opportunity for swifter decision-making. In practice, the powers have been used in only a few cases.

5.3.6 The Court’s resources The Court is financed from public funds, but it contributes to these through court fees (which produced revenue of $1.079 million in 1995/96, equivalent to around 20% of its budget), and it has a separate budget head from the Supreme Court, which confers on it a degree of financial autonomy from the Supreme Court. The main expenses are the costs of the executive members of the court and other outgoings. Actual expenditure for the year 1995/6 was $2,443,000 for executive services (primarily the salaries of judges and assessors and their expenses), and $3,067,000 for other expenses, mainly the cost of running the Registry. The annual budget is negotiated by the Chief Judge at an administrative and political level, with the ministry responsible for courts (presently the Attorney General’s Department). The Court has its own premises, comprising a renovated set of courtrooms and offices at Macquarie Street in the city centre, beside the Supreme Court of New South Wales. The Court employs approximately 16 staff in the Registry. There are 3 further support staff shared between the Assessors, and each of the judges has a researcher/tipstaff (usually a recent law graduate who will undertake research work in addition to acting as general support staff), in addition to an associate who provides secretarial support. There is also a pool of two researchers to assist the Court generally, including the provision of statistical support. A normal Court sitting will involve two Court staff sitting with the Judge or Assessor. These will be the Court Clerk and the stenographer or monitor (proceedings are taped for transcription as required). An Assessor will normally be accompanied by a Court officer and monitor. The Registry provides administrative support to the judges and assessors to enable them to hear and dispose of cases. These services include: the filing of initiating process and other court processes such as subpoenas and notices of motion; the maintenance of records; the listing of matters for disposition by hearing, conference or mediation; the provision of procedural information to the public and to the legal profession; and the provision of accounting facilities for the receipt and disbursement of funds. The 12

EPAA, s.100A.

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Registrar and the Assistant Registrar exercise quasi-judicial powers in relation to conducting callovers and issues conferences, the examination of judgement debtors and the return of subpoenas. The Registry has formulated a Business Plan which sets annual performance targets for various areas of Court work. The Court also has a research section which maintains the court’s unreported judgements section and databases of statistics, and this section is directly under the control of the Chief Judge. Monthly and quarterly caseflow figures, as we shall see below, are made available for case management purposes. The research section may also carry out some research tasks in the area of environmental and planning law generally, and in relation to the jurisdiction of the court generally.

5.3.7 Allocation of business of the Court The allocation of Court business is done by the Court Registry in consultation with the Chief Judge, list judge and Senior Assessor. The Court has the advantage that all the members operate from the same building, and the most of the business is carried on in Sydney. The Court does have regional circuit sittings and one of the Assessors will be out of the city for one week out of every four. The judges do not travel so frequently, and there is careful case management to ensure that they do not travel lengthy distances over the enormous area comprising their territory on wasted journeys. Questions of law and civil/criminal enforcement are by preference of the Court heard in Sydney. As we shall see, a strict regime of case management has been developed by the Court in recent years in an attempt to combat the problem of delay. There had been Parliamentary criticism of waiting times, and the impact these were having on the development industry. The Court has issued several practice directions on case management, and its effects are felt in four principal respects:  Adjournments: the Court is generally unwilling to grant adjournments, and will require the strongest of reasons why the matter should not proceed on the day allocated for hearing.  Callovers: the Court undertakes very frequent callovers of all its cases, conducted by the Registrar or her Assistant, to ensure that progress is being made on the case, defining issues, giving directions and setting timetables as well as hearing dates (which may not be vacated without leave).  Issues conferences: these are extensively used to try to take as many pre-agreed issues out of the litigation as possible. By specifying issues for settlement if possible by agreement, such as expert evidence, the court believes that it has managed to reduce actual hearing times by up to a half over the past 6 years. Difficult or complex cases will occasionally be managed by a judge.  ADR: this is the other main component of case management and is examined in detail below. Not only can it result in the removal altogether of cases from the list,

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but it also has the potential to limit the issues in a particular case, thereby lessening hearing time. The Court does not employ any special software for case management, and has simply devised its own operational systems over the years. All Court staff have access to email, and the Court operates a Novell network for judges, assessors and Registry staff.

5.4 Structure and statutory powers The approach which the Act adopts to defining the jurisdiction of the Court is instructive. In an attempt to avoid any problems of concurrent or overlapping jurisdiction, the Act confers jurisdiction on the Court by reference to various statutory provisions creating rights of application, objection or appeal. As a result, the Court has an appellate and a review jurisdiction in relation to specific planning, building and environmental matters. The Court’s jurisdiction is exclusive for these matters, except in the call-in cases outlined above, in most of which there will be instead a public inquiry held by Commissioners. But the Court’s procedures are not uniform for all its work: the Court is divided into six different divisions, coinciding with the six classes of statutory jurisdiction, and different approaches may be adopted for the disposal of business in each division. The classes of jurisdiction are:

5.4.1 Class 1: Environmental Planning and Protection Appeals Class 1 of the Court’s jurisdiction is prescribed by section 17 of the Act, as shown in Table 9. It is a wide-ranging group. Table 9: Class 1 of the Land and Environment Court’s jurisdiction (a) appeals under section 26 of the Clean Air Act 1961, (aa) appeals under section 75 of the Waste Minimisation and Management Act 1995, (b) objections under section 13 of the Clean Waters Act 1970, (ba) appeals under section 17M of the State Pollution Control Commission Act 1970, (bb) (Repealed) (c) appeals under sections 68 and 69 of the Noise Control Act 1975, (ca) appeals under section 54 of the Biological Control Act 1985, (cb) appeals and determinations under sections 6 and 22L of the Rivers and Foreshores Improvement Act 1948, (d) appeals, objections and applications under sections 95A, 96, 96A, 97, 98, 98A, 109K, 121K, 121ZM and 149F of the Environmental Planning and Assessment Act 1979, (e) appeals under section 70 of the Heritage Act 1977 and appeals remitted to the Court under section 77 (1) (b) of the Heritage Act 1977 in respect of applications under the Environmental Planning and Assessment Act 1979, (ea) appeals under section 106 of the Threatened Species Conservation Act 1995, and (f) appeals under sections 37–40 of the Environmentally Hazardous Chemicals Act 1985 and applications under section 44 (4) of that Act,

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(g) appeals under section 48 of the Native Vegetation Conservation Act 1997, and (h) appeals under Part 6 of the Contaminated Land Management Act 1997. In practice, the majority of matters coming to the Court in this Class are merit appeals under section 97 of the Environmental Planning and Assessment Act 1979 against local councils’ determination of development applications. Class 1 applications have continued to rise over recent years, reflecting both an increase in development activity in the State, and the trend for councils to require development consent for a wider range of activities.

5.4.2 Class 2: Local Government and Miscellaneous Appeals and Applications This class includes a variety of functions for which local authorities have jurisdiction, including matters as diverse as controls over noxious weeds and strata title schemes. But in practice the majority of appeals in his class relate to building control, and are appeals on merits rather then simply on law. Appeals are also heard in Class 2 against enforcement and compliance orders issued by a council.

5.4.3 Class 3: Land Tenure, Valuation, Rating and Compensation This is a general land valuation jurisdiction, comparable but by no means identical to that of the Lands Tribunal in England and Wales. It includes not only proceedings relating to land valuation and compensation, but also more general property disputes, such as those relating to the determination of boundaries and the encroachment of buildings. It accounts for about 11.5% of all applications to the Court.

5.4.4 Classes 1 to 3: assessors’ jurisdiction Matters coming before the Court in Classes 1, 2 or 3 may, at the request of the parties or on the initiative of the Chief Judge, be heard and determined by an assessor sitting alone, or by two or more assessors sitting together13. When this occurs, special provisions apply to the resolution of questions of law. The assessor or assessors may, of their own motion or on the request of a party, refer a question of law (including the question whether a particular question is one of law) raised in the proceedings to the Chief Judge for determination by a Judge. This provides in practice a speedy means of resolving legal issues: proceedings before the assessor are halted until the Judge has pronounced, but this can be swift: in some cases the turnaround has been no more than 24 hours. In cases in these classes where a judge sits, an assessor or assessors may also be assigned to the case by the Chief Judge, but their role is purely advisory. They may assist and advise the Court, but may not adjudicate on any matter before the Court14. Although judges can hear merits appeals in Classes 1, 2 and 3, and will hear the larger matters, pressure of caseload from the other classes means that most work in these classes is carried out by the assessors.

13 14

LECA,s.36. LECA, s.37(3).

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5.4.5 Class 4: Environmental Planning and Protection, and Development Contract Civil Enforcement Class 4 is defined by s.20 as including, broadly, the areas of judicial review and civil enforcement. The Court is given jurisdiction to hear and dispose of proceedings arising under the specific enforcement provisions of over 20 statutes. The section goes on to supplement that jurisdiction with the following general power: “(2) The Court has the same civil jurisdiction as the Supreme Court would, but for section 71, have to hear and dispose of proceedings: (a) to enforce any right, obligation or duty conferred or imposed by a planning or environmental law or a development contract, (b) to review, or command, the exercise of a function conferred or imposed by a planning or environmental law or a development contract, (c) to make declarations of right in relation to any such right, obligation or duty or the exercise of any such function, and (d) whether or not as provided by section 68 of the Supreme Court Act 1970— to award damages for a breach of a development contract.” Specific planning and environmental statutes are specified for the purposes of subs.(1), including the Environmental Planning and Assessment Act 1979, s.23 of which provides that “any person” may bring proceedings in the court for an order to remedy or restrain a breach or apprehended breach of the Act. It is not necessary to establish any locus in order to be able to bring proceedings under that section. We shall return below to the use of civil proceedings in enforcement. The court’s power to issue injunctions and other orders, and to determine applications for judicial review of the decision of local authorities, has proved an important and growing area of business. Jurisdiction is exercisable in this Class by judges only, and not by assessors, and this has meant that assessors have had to assume increased responsibility for work in Classes 1, 2 and 3.

5.4.6 Class 5: Environmental Planning and Protection: Summary Criminal Enforcement The Court exercises criminal jurisdiction under the summary enforcement provisions of various environmental and planning legislation, including:     

Environmental Planning and Assessment Act 1979 (EPAA) Environmental Offences and Penalties Act 1989 (EOPA) National Parks and Wildlife Act 1974 Marine Pollution Act 1987 Local Government Act 1993

The Government agencies that are likely to bring such actions include the Environment Protection Agency, the Department of Urban Affairs and Planning, the National Parks and Wildlife Service, the Waterways Authority, Department of Land and Water Conservation and local councils. Prosecutions had tailed off to a constant level over a

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number of years but have risen again over the past two years15. A major area of prosecutions by the EPA under the Environmental Offences and Penalties Act, 1989 is section 127 of the Environmental Planning and Assessment Act 1979, and other offences such as those under building appeals can be dealt with by the Court. The summary enforcement procedure of the Court can only be exercised by a judge of the Court. Proceedings for offences may be commenced in a local court or in the Land and Environment Court. If proceedings are commenced in the local court then lesser penalties may be imposed. The EOP Act provides for a number of separate tiers of offence in accordance with the severity of the action. At the time the Court was originally set up, it was provided with a role in criminal enforcement but the absence of widespread willingness to initiate prosecutions for environmental offences limited the Court’s practical involvement for the early years of its operation. However in the late 1980’s the State Government reviewed the laws in this area with a view to strengthening environmental protection. The resulting 1989 legislation greatly increased the role of the Land and Environment Court in enforcement. In addition to increasing penalties, the political will to call for the full force of those penalties significantly increased. For example the maximum penalty went from approximately $40,000 to $1 million in the new legislation, and the maximum term of imprisonment for environmental crimes was increased to seven years. As a result the workload of the Court in that Class increased significantly and this has been suggested to have been the main reason for the appointment of two extra judges to the Court. The mixing of civil and criminal jurisdiction has been criticised by many, including a number of the judges speaking extra judicially, for reasons we shall examine in Part 3 below.

5.4.7 Class 6: Appeals from convictions relating to environmental offences This category includes appeals from magistrates in Local Court prosecutions for environmental offences. No appeals had been lodged with the Court at the time of compilation of data for the last full year of operation, although two have been filed since 30th June, 1996.

5.4.8 Potential Class 7: native title Legislation to provide the Court with jurisdiction under the Native Title Act has been enacted but not yet brought into force. Native title claims in NSW continue to be determined by the Federal Native Title Tribunal, but the Court has jurisdiction under the 1983 Aboriginal Land Rights Act (NSW).

15

Figures are shown at para. 5.16 below.

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5.4.9 Ancillary jurisdiction The Court also has jurisdiction to hear and dispose of any matter not falling within its jurisdiction under any other statutory provision, if it is ancillary to a matter that does fall within its jurisdiction16.

5.5 Inherent jurisdiction It was thought for some time that the Court might not have any inherent jurisdiction and instead be classified as simply a creature of statute, but the 1993 case of Longwon Pty Ltd v Warrigah Shire Council17 established that the Court possessed inherent jurisdiction.

5.6 Common law jurisdiction As we have seen, the scheme of the legislation is to define the Court’s jurisdiction wholly in terms of statutory remedies. It does not, therefore, confer any common law jurisdiction, such as in relation to toxic torts, actions in trespass or nuisance, or other civil claims for environmental damage. This omission has been the subject of some debate. Although the expertise available to the Court would enable it to handle civil environmental actions, its statutory jurisdiction includes matters of a relatively urgent nature, particularly in enforcement and development appeals matters. We encountered a strong feeling among practitioners and others that the Court’s sense of urgency might be diluted if the court were to assume responsibility for civil claims, which might clog up the Court with nuisance suits and other civil damages actions.

5.7 The nature of the court’s jurisdiction The Court has original jurisdiction over all merits of the decision, and stands in the shoes of the local authority when dealing with such an appeal from those bodies. For Classes 4 (judicial review and civil enforcement) and 5 (criminal matters) the Court is a court of first instance.

5.8 Substantive criteria 5.8.1 Introduction There is no single set of criteria to which the Court must have regard in all of its decisions, since it has jurisdiction in six divisions and under several legislative measures in each. Some cases will raise solely questions of valuation; some solely questions of law. However, the legislation under which most of the Court’s business arises is the Environmental Planning and Assessment Act 1979 (“the Act”), and particularly in relation to merits appeals under Classes 1, 2 and 3 of the Court’s jurisdiction. We

16 17

LEC Act, s.16(1A). (1993) 3 NSWLR 13 (NSW Court of Appeal).

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therefore turn shortly to outline the hierarchy and purpose of plans that are provided for under that Act, and their implications for decision-making in merits appeals. First, though, it important to note the relatively informal context within which the Court operates in these three classes. The Court’s own legislation requires that its business in these classes: “shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and as the proper consideration of the matters before the Court permit”18. The Court is similarly given broad discretion as to the application of policy on merits appeals: “(4) In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest.”19

5.8.2 The framework of planning and environmental control 5.8.2.1 The principal instruments The New South Wales planning and environmental law framework is complex, fragmented, technical and highly legalistic. Environmental and land-use objectives are pursued through a hierarchical policy framework which is developed under the Environmental Planning and Assessment Act. Plans may be made “for the purpose of achieving any of the objects of the Act”. These objects are found in section 5 and are set out in Table 10 below. Table 10: the objects of the EPA Act (NSW) (a) to encourage(i) the proper management, development and conservation of natural and man made resources, including agricultural land, natural area, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment; (ii) the promotion and co-ordination of the orderly and economic use and development of land; (iii) the protection, provision and co-ordination of communication and utility services; (iv) the provision of land for public purposes; (v) the provision and co-ordination of community services and facilities; and (vi) the protection of the environment; (b) to promote the sharing of the responsibility for environmental planning between the 18 19

LECA, s.38(1). LECA, s.39(4).

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different levels of government in the State; and (c) to provide increased opportunity for public involvement and participation in environmental planning and assessment. The policy instruments which are prepared both under and alongside the Act are various, and are summarised in Table 11: planning instruments in NSW below. Table 11: planning instruments in NSW         

State environmental planning policies (SEPPs); Regional environmental plans (REPs); Local environmental plans (LEPs); Deemed environmental planning instruments, either planning scheme ordinances (PSOs) or interim development orders (IDOs) if pre 1979; Development control plans (DCPs); Council codes/policies; Directions from the Minister under sections 117(2) and 71 of the EPAA; Department of Urban Affairs and Planning circulars; Model provisions to be included in local environmental plans.

The various plans bear a close resemblance to the hierarchy to be found in England and Wales, but there some significant distinctions. The first three are the principal statutory policy instruments, and procedures are prescribed by and under the Act for their preparation and approval. These plans are collectively known in the Act as environmental planning instruments, or EPI’s, and their content is prescribed by s.26, as set out in Table 12 below. Table 12: prescribed content of NSW environmental planning instruments (a) protecting, improving or utilising, to the best advantage, the environment, (b)controlling (whether by the imposing of development standards or otherwise) development, (c)reserving land for use for the purposes of open space, a public place or public reserve within the meaning of the Local Government Act 1993, a national park or other land reserved or dedicated under the National Parks and Wildlife Act 1974, a public cemetery, a public hospital, a public railway, a public school or any other purpose that is prescribed as a public purpose for the purposes of this section, (d)(Repealed) (e)protecting or preserving trees or vegetation, (e1)protecting and conserving native animals and plants, including threatened species, populations and ecological communities, and their habitats, (f)controlling any act, matter or thing for or with respect to which provision may be made under paragraph (a) or (e), (g)controlling advertising, (h) such other matters as are authorised or required to be included in the environmental

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5.8.2.2 Environmental planning instruments State and Regional policies are the responsibility of the State Government. SEPPs must be approved by the Governor General; REPs by the Minister. LEPs are the responsibility of the local councils, who may act jointly. Compliance with State policy seems to be intended to be secured through a procedural provision which prevents the council from taking steps towards adoption of their plan without a certificate from the Director of the Ministry20, but the State instruments do not necessarily take priority over the local plan. Indeed, the Act provides that there is to be no hierarchical rule, and that the most recent instrument should prevail unless one of the instruments contains a specific provision to the contrary. In practice SEPPs and REPs do contain specific declarations as to their priority, which may be not only in relation to existing local instruments, but also to future local instruments. State policies can only be made where the Minister reaches the opinion that they are concerned with matters of significance for environmental planning for the State as a whole21. Their use has been used principally as a power of Ministerial intervention in the local planning process. Most SEPPs have amended the details of existing LEPs, by removing development from prohibited zoning categories or imposing consent requirements which do not exist under the LEPs. Only one SEPP to date has had a general policy objective akin to that of the PPG series in England and Wales, by establishing a policy framework to be further detailed by fleshing out and applying to particular circumstances by other instruments. This is SEPP 32, which spells out urban consolidation aims and objectives to be implemented through LEPs and REPs on urban land. Regional policies (REPs) also can only be made where the Minister is satisfied that they are concerned with matters of significance for a region or a part of a region, and he has a very wide discretion to decide what constitutes a region, since there are no equivalent divisional units of local government. The REPs typically cut across local authority boundaries but many are little different from LEPs, and simply allow a greater degree of State intervention on specific matters. However some would, in contrast, have broad policy objectives in relation to a particular region. For example, Sydney REP 19 - Rouse Hill Development Area - spells out the kind of zones and zone objectives which must be included by those councils that share that development area in their LEPs. Regional planning is not a natural participant in this set of relationships, because there are no regional units of government. Hence, it exists in a vacuum, without implementation machinery and without funding or status. It is in fact the State government that determines whether a policy can appropriately be produced at regional rather than local level. Hence, although in theory it offers the potential for local authorities to work collectively and to co-operate in producing desirable outcomes for 20 21

EPAA, s.65. EPAA, s.

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that level between state and local planning, it offers in practice an opportunity for State intervention in local decision making. The regional plans are necessarily surrogate State planning policies. The local councils have campaigned for a strategic initiative between the State Government and the ad hoc regional organisations of councils to achieve a more holistic approach than can be achieved at the purely local level Subject to SEPPs and REPs, where an LEP has been adopted, covering the whole or part22 of a local government area, it has priority in policy and statutory development control terms. However some local government areas are not yet covered by an LEP, and have instead either planning scheme ordinances, or interim development orders, left over from the previous legislation. Where these remain in force, they are deemed to constitute environmental planning instruments under the Act. 5.8.2.3 The legal status of EPIs An important distinction between environmental policy instruments in New South Wales, and policy statements and development plans in England and Wales, is that the former have direct legal effect, whereas the latter are purely guidance: they constitute material to which the decision-maker is obliged to “have regard”. The New South Wales instruments, however, are legally binding on both councils and developers. Any person may bring an action to remedy or restrain a breach of an environmental planning instrument23, and breach of their requirements also gives rise to criminal liability. 5.8.2.4 Non-statutory policies Department of Urban Affairs and Planning Circulars are regularly issued to councils by the Department. They offer guidance on interpreting and implementing legislation and are persuasive in effect. As in England and Wales, they have no legal force, and in one instance such a circular was held to have positively misrepresented the law. Model provisions for adoption by local authorities in their LEPs were issued in 1980, and although their use is not mandatory they are often adopted in whole or in part. Development control plans and council codes or policies generally deal with the same matters as are covered in the LEPs and REPs, except that they will contain considerably more detail. They are not legally binding, but are designed to flesh out the policies contained in the environmental policy instruments. They deal in practice with matters such as car parking, industrial development, standards for villa and residential flat development and other such matters. 5.8.2.5 Statutory directions Directions are issued under section 117(2) to restrict local councils in respect of the content of a LEP. A direction could formerly be issued only if it dealt with matters of significance for the State or region, but this restriction was removed in 1985. Should the Council not comply, the Director of Planning may refuse to allow the certificate needed for the plan to go on public display (and to be ultimately adopted). Directions issued under this section may apply either to all local government areas, or to specific areas and specific local area plans. 22 23

It may cover either the entire area or simply a small block of that area (e.g. for small scale rezoning). Under the EPAA, s.123.

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Directions may also be made by the Minister under section 71 as to the “format, nature and subject matter” of an LEP.

5.8.3 When development consent is required Development may be carried out without development consent, if it is specifically permitted by one of the environmental planning instruments outlined above24, or if it is defined by such an instrument as exempt development. An instrument may also create classes of “complying development”, which may be carried out as of right provided it complies with standards established by the instrument. If it does, the developer will need to obtain certification of this, from an accredited certifier. However, no such provision may be made in the case of “state significant development” (see below), nor in respect of development in certain vulnerable areas.25 As a result of these arrangements, applications are not required for many road, water and forestry operations: the land may be unzoned, or specifically exempted from the need to obtain consent. However there will often be environmental impact assessment requirements in respect of such projects, and a consenting authority must “examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment” by reason of that activity. If likely to significantly affect the environment the authority must consider whether an environmental impact study should be submitted prior to granting consent. Development which may not be carried out without consent is classified as either “local development”, or “state significant development”. The latter category is development so defined in an SEPP or REP, as being development which may be carried out only with consent26.

5.8.4 Criteria for granting consent In the case of all development other than State significant development, application for consent is made to the council, who, under the integrated permitting scheme, have power also to grant consent for a range of other matters needed for the development. In determining a development application, the council and any other consent authority are required to take into consideration such of the following matters as are of relevance to the development the subject of the development application27: “(a) the provisions of: (i) any environmental planning instrument, and (ii) any draft environmental planning instrument that is or has been placed on public exhibition and details of which have been notified to the consent authority, and (iii) any development control plan, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), 24

EPAA, s.76(1). EPAA, s.76(5). 26 EPAA, s.76A(7). 27 EPAA, s.79C(1). 25

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that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest.” This list of requirements is added to by the Local Government Act 1993, section 89, and by reg. 12 of the Local Government (Approvals) Regulation, 1993. These also contain matters (often leading to overlap or multiple requirements) for the consent authority to “take into account” in making the decision.

5.8.5 Integrated permitting A major criticism of environmental and planning controls in New South Wales has been the fragmentation that existed between different approval requirements, which had been introduced at different times, for different purposes, and applying different criteria. In 1997, proposals were introduced for reform. The Department of Urban Affairs and Planning published a White Paper and Exposure Draft Bill on Integrated Development Assessment. This proposed major changes to make the system more efficient and effective. They were in due course given effect in the Environmental Planning and Assessment (Amendment) Act 1997. The most significant reform has been the introduction of a single consent procedure for the following activities: “(a)the use of land, and (b) the subdivision of land, and (c) the erection of a building, and (d) the carrying out of a work, and (e) the demolition of a building or work, and (f) any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument” The amendments also rationalise other local government approvals, such as the operation of a public car park, with a development consent granted under the EPA Act. If the matter is assessed as part of a development application under the EPA Act, there will be no need for separate applications under the Local Government Act 1993. Provisions governing this range of activities will also be transferred to the EPA Act.

5.8.6 Prior review of council’s decision Where a council has refused development consent, or imposed conditions, the Act establishes a right for the applicant to request them to review their determination28. Such a request must be made within 28 days of that determination, and a fee is payable. The council are empowered to review their original decision. Except in a case where the decision was made by the council itself, the review must be conducted by someone other 28

EPAA, s.82A.

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than the delegated official who made the decision under review. If development consent is granted or varied, the new determination simply replaces the old; and the council is entitled to have any appeal which was lodged to the Court against the original determination withdrawn.

5.8.7 Consents to discharges to the environment Local councils do not have responsibility for licensing in respect of environmental emissions. Licences required under the Pollution Control Act, the Clean Air Act, the Clean Water Act and the Noise Control Act and the responsibility of the NSW Environmental Protection Agency. Appeals from disappointed applicants lie to the Court, but there are few of them. In 1990 and 1991, for example, only eight appeals were lodged, against conditions imposed on licences. In practice, matters are negotiated without need for Court adjudication.

5.9 Practice and procedure of the Court 5.9.1 Initiating proceedings Jurisdiction in each of the Court’s six classes is triggered in different ways. The initiating process in Classes 1 to 4 is by application in the forms set out in the Schedule to the Court Rules, and the rules for service are set out in Part 8 of those Rules. The application must set out all the usual items, such as names and addresses, service details, identification of the decision complained against and the reasons why, in the case of an appeal, and a statement of the relief sought in Class 4 matters. The application form is worded in simple terms, and is freely available: it may be downloaded from the Court’s website, although it cannot yet be submitted electronically. Three sets of the application are usually necessary, and the fee is set on a sliding scale. The norm for residential matters is $497 (about stg£240). However, if the value of the development exceeds $1 million, the filing fee approaches $3,00029. Classes 1, 2 and 3 involve appeals, objections or references. The most common, in Class 1, are appeals under section 97 of the EPAA against development conditions which a council has imposed on a development consent, appeals against the refusal of a development consent, or against a deemed refusal resulting from a failure by the council to determine the application within the prescribed time. This casework closely resembles that going to the Planning Inspectorate in England and Wales. A significant difference is the statutory right of the applicant, outlined above, to seek a review by the council which, if it leads to a revised decision by them, allows them to require the withdrawal of any appeal that may have been made30. In Class 2, the matter is usually an appeal under the Local Government Act 1993 relating to building applications. This may involve appeals against refusal of applications, conditions imposed or delay by the Council. 29 30

Fees are prescribed by the LEC Regulation 1994 (last updated October 2, 1998). EPAA, s.82A(10).

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Class 3 deals with compensation matters, but there are also a number of miscellaneous appeals under legislation such as the NSW Aboriginal Land Rights Act. Class 4, judicial review, is effectively an appeal on a point of law against a decision of a local authority or State Agency. The remainder of Class 4 will also consist of original applications rather than appeals, as the Court is the first stop for enforcement jurisdiction, providing injunctions and declarations (as well as certain ancillary orders). 5.9.1.1 Leave There is no requirement of leave to proceed to the Land and Environment Court. 5.9.1.2 Time limits Rights of appeal under the EPA Act are subject to the following time limits: (1) an applicant who is dissatisfied with the decision of a consent authority who has either refused the application or attached conditions to a consent may appeal to the Court within 12 months of the receipt of that decision31. An applicant may also appeal against a “deemed refusal”, where a consent authority has failed to determine an application within 40 days of lodgement (or 60 days for designated development)32. (2) An objector to a development application may bring an appeal against the grant of permission, but only if the development involved is so-called “designated development”33. Such an appeal must be made within 28 days after the date on which notice of the determination was given. (3) A dissatisfied applicant with respect to an application for a building or other application under the Act may appeal to the Court within 12 months of the date of determination34. Where specific time limits are not provided under the particular legislation, Part 15 of the Land and Environment Court Rules provide that an appeal may be lodged by any person at any time within 60 days after the right of objection, appeal or reference first arose.

5.9.2 Third party proceedings Third parties have wide rights to bring matters before the Court. Their rights include the following: (1) third party appeals: a person who has made submissions in respect of a development application to carry out “designated development” (see above) may appeal to the Court in respect of the consent authority’s determination of the application. This is 31

EPAA, s.97. EPAA, s.82. 33 EPAA, s.98. Designated development was formerly defined by Sched. 3 to the Act, but is now defined (s.77A) by any environmental planning instrument (EPI) or regulations. 34 Local Government Act 1993, s.176. 32

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(2) civil enforcement applications: a powerful right arises under the Environmental Planning and Assessment Act35, which allows “any person” to bring proceedings in the court for an order to remedy or restrain a breach or apprehended breach of the Act. It is not necessary to establish that a right has been infringed nor to establish any special interest. The Court’s broad construction of the section has been upheld by the NSW Court of Appeal. In F Hannan Pty Ltd v Electricity Commission of NSW 36 the Chief Justice observed that the provisions made it clear that the task of the Court was “to administer social justice and the enforcement of the legislative scheme of the Act”, and that this went beyond administering justice inter partes. He went on: “Section 123 totally removes the conventional requirement that relief is normally only granted at the wish of the person having a 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. The precise manner in which the Court will frame its orders in the context of particular disputes in ultimately the discretionary province of the Court to determine in the light of all the factors falling within the purview of the dispute.” The remedies that the Court can provide are set out in Table 13, from which it can be seen that section 123 confers a powerful and convenient remedy. It ensures that there is no monopoly over enforcement in the hands of the Local Councils, and that citizens generally have a right of access to the Court to restrain breaches of planning law. The Court, in turn, is given broad powers to tailor the remedies to the breach. Those powers include a power to adjourn proceedings in an appropriate case to allow the developer to seek development consent. Table 13: the Land and Environment Court’s powers in civil enforcement37

(1) Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach. (2) Without limiting the powers of the Court under subsection (1), an order made under that subsection may: (a) Where the breach of this Act comprises a use of any building, work or 35

EPA Act, s.123 (1988) 66 LGRA 306 37 EPA Act, s. 124. 36

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land—restrain that use, (b) Where the breach of this Act comprises the erection of a building or the carrying out of a work—require the demolition or removal of that building or work, or (c) where the breach of this Act has the effect of altering the condition or state of any building, work or land—require the reinstatement, so far as is practicable, of that building, work or land to the condition or state the building, work or land was in immediately before the breach was committed. (3) Where a breach of this Act would not have been committed but for the failure to obtain a consent under Part 4, the Court, upon application being made by the defendant, may: (a) Adjourn the proceedings to enable a development application to be made under Part 4 to obtain that consent, and (b)in its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are adjourned.

(3) Criminal proceedings: any person may apply to the Court for leave to bring proceedings for an offence under the Environmental Offences and Penalties Act 198938. The Court must ensure that the EPA is informed of the proceedings and does not wish to take the action itself, (4) Civil orders in respect of criminal offences: any person may bring proceedings in the Court for an order to restrain a breach of the EOP Act or any other Act if the breach is causing, or is likely to cause, harm to the environment39. While phrased in terms of open standing, the right is restricted by the need to obtain leave from the Court before proceeding. The Court considered the provisions carefully in the first case arising under them, Brown v EPA40, where leave was granted. The Court must be satisfied that the action does not constitute an abuse of process, that there is a significant likelihood of the making of the eventual order and that the proceedings are in the public interest41. (5) Similar general entitlements, to bring proceedings in the Court to restrain any breach of the legislation that Act, whether or not any right of the applicant has been infringed, are conferred by: (a) (b) (c) (d) (e) 38

the Heritage Act 1977, section 153; the Environmentally Hazardous Chemicals Act 1985, secant 57; the National Parks and Wildlife Act 1974, section 176(A). the Wilderness Act 1987 section 27 and the Local Government Act 1993, section 674.

EOP Act, s.13. EOP Act, s.25. 40 (1992) 75 LGERA 397. 41 EOP Act, s.25(3). 39

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(6) Judicial review: judicial review falls within Class 4 of the Court’s jurisdiction, as a jurisdiction “to review, or command, the exercise of a function conferred or imposed by a planning or environmental law”42, and applications for judicial review fall therefore There are other open standing provisions so that common law standing is virtually never an issue.

While there is concern amongst large business concerns and the development industry regarding the extent of third party rights, it appears that it would be politically risky to remove these rights and that they are viewed as an intrinsic part of the principle of public access to environmental justice.

5.9.3 Pleadings The Court does not have any formal system of pleadings, but a practice has developed of pre-hearing procedures. There is no requirement of formal response by the respondents to the application or appeal. However, parties may lodge points of claim and points of defence, identifying the issues to be dealt with by the Court. The Court may give directions for points of claim and defence to be lodged, but will do so only where it concludes that it is likely to be appropriate and of assistance to the parties and the Court to help define issues of fact and of law. The Court places great emphasis on these statements of issues, in which the parties are expected to identify clearly and clarify the issues to be heard at the full hearing. The Court may direct that any document filed in the proceedings be amended in such manner as the Court thinks fit, but only “so as to lead to the determination of the real questions raised by or otherwise depending on the proceedings, or the correction of any defect or error in any proceedings, or the avoidance of a multiplicity of proceedings”43. The Court’s discretion extends to requiring the filing and/or the service of a fresh document. In Class 4 applications the Court will often require the provision of brief points of claim and defence. The Court also has very specific powers to order the amendment of any document filed after expiration of the limitation period, pursuant to Part 10, Rule 2.

5.9.4 Interim orders The Court may issue interim orders and rulings prior to the full hearing of the matter, and also to grant interim injunctions relating to the alleged breach of any defined “planning and environmental” law, such as the EPA Act. Most of these powers are available under Class 4 of the Court’s jurisdiction and include the following powers granted to the Court under the 1989 Environmental Offences and Penalties Act (“EOP Act”):

42 43

LEC Act, s.20(2)(a). Rules of Court, Part 10.

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(a) Restraining orders under section 16, where a person may seek an order to prevent disposal of the defendant’s property. An order will only be granted where there is a real risk that the defendant will dispose of the property to avoid paying an amount due to the party applying for the order. The Court may ask the applicant for an undertaking prior to granting an order; (b) Ancillary orders under section 17, to support a restraining order, which can include an order: 

for examination on oath of the defendants regarding his affairs;



varying the restraining order and the property to which it relates; or



varying the conditions of the restraining order.

These may be made at the time of the restraining order or at a later date. Contravention of a restraining order is an offence and can result either in fine or imprisonment. The person who sought the restraining order may seek to have a disposition of property set aside, if that disposition can be shown to be not for sufficient consideration or not in favour of a person who acted in good faith44. The Court has a number of options in dealing with such requests. Similarly the party who is the subject of an order may have it revoked by providing sufficient security or an undertaking45.

5.9.5 Joinder The Supreme Court Rules, as incorporated into the Land and Environment Court Rules (Part 8, Rule 2) provide that two or more parties may be joined as plaintiffs or defendant, in any proceedings, essentially where there is a common question of law or fact and the rights to relief claimed arise out of the same transaction. Both limbs must be satisfied, otherwise the Court’s leave will be required for the joinder. Under Part 8, Rule 8 of the same part of the Rules, the Court may also order that a person be added as a party to ensure that an action is not defeated by the non-joinder or mis-joinder of any person necessary to the proceedings. However the Court may alternatively use its powers under section 38 of the Act (allowing it to inform itself fully as to any matter) to enable a bypass of the formal need for joinder. There is also the possibility of applying to the court for leave to be joined, rather than as of right, but this must be shown to be necessary to the action. Intervention may be permitted at the discretion of the Court under Part 6 of the Act.

5.9.6 Undertakings as to damages and security for costs The Court may require undertakings as to damages where an injunction is being sought but the Court has initiated a radical practice of not insisting on this requirement in cases

44 45

EOP Act, s.20. EOP Act, s.21.

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of public interest litigation, where insistence on the undertaking would defeat the action46. The Court has a wide discretion47 as to whether to require security for costs, which must be exercised having regard to all the circumstances of the case. This is examined further below in the context of costs generally.

5.9.7 Written representations The Rules48 provide that, if all parties to the proceedings, consent, the Court may give its decision without a hearing, but on the basis of the parties’ written representations. However, this course remains deeply unpopular, and is used in less than one per cent of cases. One Court member commented that the written representations method tended to produce documentation which was overly long, and the feeling was that a hearing was just as quick and cheap (in terms of court time) in terms of easy access to the issues. However, written submissions will often be used in conjunction with an oral hearing.

5.9.8 The “call-over” process: Classes 1, 2 and 3 The call-over process is the central instrument of case management in the Court. It applies to all cases in Classes 1 (environmental planning appeals); 2 (building controls) and 3 (valuation and compensation). A call-over is a meeting of the parties called and chaired by the Registrar. Its purpose is to facilitate regular review by the registrar of the progress of every matter that has been filed in the Court. When an application or appeal is filed the applicant is given a call-over date and time, usually about 4 weeks later. The applicant is required to deliver at least one set of the papers to the respondent at least two weeks before the call over. The formal functions of the callover are as follows49: 

to consider the possible length of the hearing, the issues involved and the necessary preparations;



to deal with as many matters before the hearing as possible;



to give such directions as appear just for the quick and cheap disposal of the matter.

The Registrar’s duty at a callover is “to endeavour to ensure that the parties make all agreements as to the conduct of the proceedings which ought reasonably to be made b y them”50. The Registrar may record any such agreement, and also any failure to make such an agreement which may be taken into account subsequently on applications for costs or adjournment. Each party is required at the call-over to give the information, and 46

See eg Ross v State Rail Authority of New South Wales (1987) 79 LGRA 91. LEC Act, s.69. 48 LEC Rules, Part 13, Rule 33. 49 LEC Rules, Part 13, rule 8. 50 LEC Rules, Part 13, rule 9(1). 47

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to produce the documents, which the registrar requires, both to the Registrar and to the other parties. At the first callover the issues are identified. An estimate is made of the likely length of the hearing, and it may also be possible to identify the expertise and names of the witnesses to be called. Points of law must be identified at this time to decide whether a judge needs to hear a case in toto or whether a preliminary point of law needs to be decided before the assessor commences a merits hearing. Otherwise, once a case has commenced hearing in the merits classes, a point of law can only be raised with leave, by notice of motion. The Registrar may also suggest that the case is a suitable one for resolution by mediation, and may offer the services of the Court mediators in the circumstances. If the issues are sufficiently clear and the parties are ready for hearing, the matter may be set down for hearing at that callover. This is not usually the case, and the matter will probably not be called over for the second time for another 14 days. Issues cannot, after the first callover, later be added to or expanded without the leave of the Registrar. At the second callover the Registrar will wish to know why the matter may not be set down, and will strongly encourage the parties to resolve as many of the remaining issues as possible in advance of the formal litigation. Some matters, usually those of a complex nature, may go to a third callover, which should be no more than 8 to 10 weeks following the initial filing of the matter. There would need to be an exceptional reason for the matter not to be set down at this point. That date for the hearing would probably be three or four weeks from the date of the callover, but the timing will allow at least 14 days for exchange of further expert witness reports. Call-overs for country listings for merits hearings in the regions outside Sydney are usually conducted by telephone. Apart from the points of claim and defence (or a statement of issues in merits appeals), which should be agreed early on, the Court aims to minimise the documents involved in the process. A party may require particulars such as are necessary to identify the case which that party has to meet. The Court also has the power to order further and better particulars of the case if necessary. In proceedings in Classes 1, 2 and 3 a party may serve upon any other party a notice requiring the production at any hearing, conference or call over, any document or thing for the purposes of evidence which is in the possession, custody or power of the party served51. That document or thing must be produced, without the need for a subpoena. Subpoenas may also be issued to non-parties to produce material or give evidence52. A list of potential hearing dates available will be provided at the top of each call-over list. If the parties require a date outside those dates, they must provide an affidavit setting out the reasons why. Non-availability of given counsel is not generally sufficient. The Court will wish to ensure that at least 14 days clear minimum notice is obtained of the contents of experts’ reports. In practice the Court regards this period as a minimum

51 52

LEC Rules, Part 13, rule 32. LEC Rules, Part 13, rule 31.

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and is insistent on the need to expose the issues fully so as to avoid any surprises before the hearing and to explore the nature and content of expert evidence.

5.9.9 Callover in Class 4 cases The call-over regime applies also to Class 4 matters (civil enforcement), but at the first call-over the Registrar is required to determine whether the evidence is to be given in affidavit form (the most common course) or otherwise53, and there are rules as to the filing of objections to affidavits, and cross-examination upon them.

5.9.10 Fast track for controversial cases If a case involving a major controversy comes to the Court, its practice is to “fast track” it to a final hearing in a very short time, usually weeks rather than months. One former Judge has commented that “this keeps the lawyers and scientists on their toes but is necessary in the general public interest. Indeed, the Court has the enviable reputation of being a delay-free court.”54

5.10 Hearings procedure There is a variety of different ways in which the Court may dispose of a case. They include: (1) By an assessor at a conference (2) By an assessor after a hearing (3) By the Registrar at a call-over if all the parties consent to it being completed in a particular way (4) By a Judge at a mention (5) By a Judge after a hearing (6) By the filing of notice of discontinuance (7) Following agreement at mediation

5.10.1 Conferences For all proceedings in Classes 1 (environmental planning appeals), 2 (building controls) and 3 (valuation and compensation), the Registrar may, if the parties so request or the court considers it appropriate, arrange a conference between the parties, to be presided over by a single assessor55. Whereas a call-over is primarily a procedural process, intended to bring the case forward for determination, a conference is chiefly a means of disposing of the case. The assessor is empowered to dispose of the proceedings in accordance with any agreement reached at the conference between the parties as to what 53

LEC Rules, Part 14, rule 1. Hon Justice Paul Stein, “A Specialist Environmental Court: an Australian Experience”, unpublished conference paper, IALS environmental law conference, 1993. 55 LEC Act, s34(1); Practice Direction 1993, para 3. Conferences were previously mandatory in all cases. In the case of Class 4 matters, a conference requires the request of all the parties to the proceedings under s.34(1A). 54

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would be acceptable to them56, but if no such agreement is reached the assessor’s role is to make a written report to the Court setting out the assessor’s views as to the issues in dispute between the parties.

5.10.2 Class 4 issues conferences It is also the usual practice in Class 4 matters for parties to attend an issues conference once all affidavits have been filed. Practice Direction 13 provides that generally speaking, matters will be fixed for hearing at an issues conference rather than from callover. The primary purpose of the issues conference is to explore the possibility of settlement. Even if settlement is not a prospect, the Court envisages that the issues can be narrowed following such a conference. The parties are requested to ensure that they have present a representative who is authorised to settle the matter at the conference or who can obtain instructions at short notice as to whether an agreement to settle on a particular basis is authorised. They are also requested to ensure the presence of any relevant experts. At least a week before the conference each party will be required to file and serve a statement, of 2-3 A4 pages, setting out their respective positions.

5.10.3 General hearings procedure A hearing before the Land and Environment Court in Classes 1, 2 and 3 is a total rehearing, and the Court has all the functions and discretions of the original decision maker. Because of this, evidence may be given which is in addition to, or as substitution for, the original evidence given to the consent authority at the primary hearing. Also, the law to be applied is that in force at the hearing date and not the date upon which the matter was originally determined by the consent authority. Requirements vary according to the Class within which the matter falls, and according to whether the proceedings are taken by an Assessor or a Judge. All the issues, including questions of law, are to have been identified with precision and settled at the first call-over before the Registrar57. They cannot later be added to or expanded without leave. Hence, unless a point of law is raised at the call-over, it can only be raised in the proceedings by leave by notice of motion. Subject to that, it is not open to a party to raise any question of law in proceedings before an Assessor58: the determination by the Assessor is required to be made entirely on the issues in dispute between the parties, and on the merits of the case. There are simple procedures for the conduct of hearings. Both parties are invited to outline their case, starting with the respondent. Statutory planning and other documents and expert reports are then tendered. The respondent then presents its case by calling its witnesses and experts. This is followed by the applicant’s case in a similar manner. It is common to have both parties legally represented as permitted by section 63 of the Act, although town planners, other professionals or the applicant may present the case.

56

LEC Act, s.34(3). LEC Rules, r.14. 58 LEC Rules, r.16(g). 57

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Leave is required for the examination and cross-examination of experts. It is not automatically given. Objectors are allowed to be heard if called as witnesses by the Council. In Class 1 and 2 matters, when all or most evidence has been presented, the practice is to visit the site, in the presence of the parties. The hearing will then be concluded by the making of closing submissions by the advocates, based on the evidence, with the applicant beginning followed by the respondent. The applicant then has a right of reply.

5.10.4 Evidence Evidence may be taken as read, at the discretion of the assessor or judge, but the tendency in a full hearing de novo is to be wary of such a course. The Court, stepping into the shoes of the consent authority, must consider the requirement of full public consultation and ensure that all of the issues are exposed for public scrutiny in the interests of public justice. A proof of any expert evidence which is to be relied on at the hearing must have been served at least 14 days in advance of the date fixed for hearing. The Rules do not deal with reports in reply although these may be permitted with the leave of the Court where appropriate. Practice Direction 3 prescribes the format of the report and insists that “expert reports shall be so presented as to clearly and concisely state the opinions proffered and the basis for those opinions. Expert reports should eliminate unnecessary background material.” Unless insisted on by the other party for cross examination purposes (with 7 days notice), the expert is not required to attend the hearing, and his written report is treated as evidence before the court59. Evidence not addressed in a report in chief can be given as oral evidence only with the leave of the Court. The rules of evidence do not bind the Court in matters in Classes 1, 2 and 360, and the Act provides that the Court should be as informal in its proceedings as possible having regard to considerations of justice61. The hearsay rules are rarely enforced, and experts are sometimes invited to offer opinion evidence on matters not calling for specialised knowledge. Also the distinction between inferences from observed facts and opinion evidence strictly so called is rarely observed.

5.10.5 Allocation of assessors and judges Matters in Classes 1, 2 and 3 (merits appeals) are mainly allocated to an Assessor, sitting alone. The Court has great flexibility in this respect. Less complex appeals are identified by the Registrar and assigned to hearing before a Duty Assessor, without holding a conference or call-over. At least one Duty Assessor is available one day a week for hearing short matters62.

59

Practice Direction 3. However, in practice experts usually are given notice to attend for cross examination. 60 LEC Act, s.38(2). 61 LEC Act, s.38(1). 62 LEC Practice Direction 1.

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At the other extreme, in complex matters and those of major public importance in Classes 1 to 3, it is likely that the Chief Judge will appoint a multi-member Court consisting of a Judge and at least one assessor. More than one assessor may be appointed, depending on the nature and extent of the technical aspects of the case. Assessors are the Court’s primary weapon for tackling difficult technical issues and, while their expertise cannot cover all the possible areas required, they are perceived to do an excellent job in filling gaps in the judges’ knowledge in town planning, construction, architecture and so on. The Court may also call its own expert witnesses on any point but has only done this on a couple of exceptional occasions. One reason for not doing so is that the Court would have to pay for this advice.

5.10.6 The character of hearings The Court probably adopts a more inquisitorial stance than most courts at a similar level, but it nevertheless operates within a clearly adversarial framework. It has the power to inform itself as it sees fit in assisting in its final decision. The Court is very conscious of complying with procedural fairness issues, and one Court of Appeal judgement severely criticised one member of the Court for an overly intrusive inquisitorial style in a case some years ago. This does not necessarily mean that the inquisitorial style, per se, is regarded as inappropriate, but that it is seen as more appropriate for the Court to allow parties to engage in the traditional adversarial manner. Therefore the structure of proceedings and their conduct remains quite old fashioned, although the Court insists that it must, as the consent authority in many matters (and therefore having the responsibilities of environmental protection under various statutes), view the case as having a public interest element and not just a dispute between two private parties. It appears that the Court would have the power to require the parties to have side meetings to resolve technical issues, but the pre hearing procedure for identifying issues is sufficiently effective not to need the exercise of this power very often. However, it does happen on occasions. Even so, the power is more often used as a means of exploring common ground in relation to technical issues than for the Court to call its own evidence on a technical point.

5.10.7 Litigants in person There is some litigation by lay persons before the Court, and although no statistics are available, we estimate that about 15% of all cases have a litigant in person on either side. We have already seen that the system is regarded as highly technical and legalistic, and for that reason the chances of success in any other than the smaller and simpler cases is seen as small. The best chance lies obviously in Classes 1, 2 and 3 of the Court’s jurisdiction, where lawyers are not quite as dominant. Interestingly it was observed by a number of people that the figure for lay litigants has declined steadily over the years since 1980, when the Act first came into place. One wonders whether the concept of a people’s court has declined also over the course of those 17 years, due to the ever more complex law in this area. Where parties are not represented the Court makes every effort to lend them appropriate assistance, and certain judges are noted for their role in such cases. However they remain

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very cautious about the extent to which they can afford assistance without being seen by other parties as biased and are always conscious of the rules of procedural fairness which ensure that they must retain total impartiality at all times. The possibility of appeal to the Court of Appeal also acts as a further discipline in this respect. While the impression might be that the growing trend for ADR might raise the lay litigant rate, the tendency is still to have lawyers fully involved in the mediation. As we shall see, the process is becoming increasingly formal.

5.10.8 Formalities Given the absence of any formal rules of evidence in Classes 1, 2 and 3, and the general obligation under the Act63 to be as informal as possible in the conduct of the court, the assessor or judge has wide discretion as to what to allow or disallow, though governed by the need to observe procedural fairness and tempered by the prospect of appeal. In fact, the Court functions much like any other Court of the level of the Supreme Court and dealing with matters involving unlimited financial jurisdiction. There is formal structure to its proceedings, particularly in judicial review, criminal and civil enforcement matters.

5.10.9 Precedent The Court is not strictly obliged to follow its own decisions, but is bound by decision of the Court of Appeal of New South Wales and the Australian High Court. It has a jurisdiction relating not only to matters of law, where the effect of precedent can be expected to be powerful, but also to matters of policy and the merits of individual planning and environmental disputes, where a greater flexibility is to be expected. Nonetheless, its own decisions are regularly cited to the Court and are found to be highly persuasive, a tendency likely to be reinforced by the fact that the majority of its cases are fully reported, and attract extensive comment. Despite its protestations to the contrary, the Court was thought by some of our interviewees to be a very precedent driven institution.

5.10.10 Judgements and orders Judgements can be given either ex tempore or reserved. Ex tempore judgements and the orders of the Court are given immediately following submissions or shortly thereafter at the Court’s convenience. The formal orders of the Court under seal are then issued by the Registrar, usually within a week. At the request of one or other of the parties, a transcript of ex tempore judgements can be made available. Reserve judgements together with appropriate orders are usually handed down within one month of the hearing. The Court is likely to issue a protocol for time standards for reserved judgements. Between 75% to 90% of assessors’ judgements are given immediately at the conclusion of the case, and their reserved judgements are issued within a month of the hearing. 63

LEC Act, s.38.

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5.11 Appeal from the Court There is a right of appeal on a point of law to a Judge of the Court from a decision of an assessor in proceedings in Classes 1, 2 and 364. There is a general right of appeal from a judge of the Court to the Court of Appeal in respect of an issue of law65. However the leave of the Court of Appeal is needed in respect of a number of categories of appeal, and these are governed by the Supreme Court Rules. They must be commenced within 28 days after the order or decision is made. In some circumstances the Court of Appeal may order security for costs. In respect of Class 4 proceedings, which are always heard by a judge, the appeal is to the Court of Appeal. This includes appeals from interlocutory decisions66, again with leave. In these appeals the Court of Appeal may review issues of both fact and law where a party is dissatisfied with an order or decision of the Court.

5.12 Costs The Court has the power to award costs against unsuccessful parties67, but in merits appeals the power is rarely exercised. It is the declared practice of the Court that no order for costs will be made in planning and building appeals (Classes 1 and 2), nor in valuation, rating and sub-division appeals in Class 3, unless the circumstances are exceptional68. This means in effect that conduct must have been almost vexatious or frivolous to attract a costs award. Very late adjournments and discontinuances might be such examples, if a costs application is made by the other party. Any application for costs must be made by Notice of Motion within 14 days of the publication of a judgement, and will be heard by a judge, even if the original matter was heard by an assessor. In Class 4 matters (civil enforcement and judicial review), the jurisdiction of the Court is more akin to that of a conventional court, and for this reason the Court started from the position that the “usual rule” should apply to the award of costs: that is, that the unsuccessful party should pay the costs of the successful party. However, an exception to that rule was made by Stein J in Oshlack v Richmond River Council69 where the applicant had commenced proceedings as “any person” under section 123 of the Environmental Planning and Assessment Act 1979. He asserted a failure by the Council to consider properly whether a proposed development was likely to affect significantly the environment of endangered fauna. Stein J rejected the application, but determined that there should be no order for costs. That ruling was reversed by the Supreme Court of New South Wales, but reinstated in 1998 by a majority (Gaudron, Gummow and Kirby JJ) of the High Court70, against a powerful dissent (Brennan CJ and McHugh J).

64

LEC Act, s.56A. LEC Act, s.57. 66 LEC Act, s.58. 67 LEC Act, s.69 68 Practice Direction 10 and 10A. 69 (1996) 39 NSWLR 622. 70 Oshlack v Richmond River Council [1998] HCA 11 (February 25, 1998). 65

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Stein J had taken various factors into account, including the need to distinguish, from the private law context in which the “usual order” had developed, applications to enforce public law obligations arising under environmental laws. Otherwise, the broad rights of standing under section 123 would have little significance. He accepted that it was not sufficient simply to characterise litigation as “public interest litigation”, but that in the present case the applicant’s action had been motivated by a desire to ensure obedience to environmental law, that he had nothing personally to gain from it, that a significant number of members of the public shared his concern, that the case was arguable and that it had resolved significant issues as to the interpretation and future administration of the relevant statutory provisions. There were therefore sufficient special circumstances to justify a departure from the ordinary rule. The majority in the High Court agreed. They placed emphasis in particular on two features: first, that the matter was primarily one for the discretion of the first instance judge, and the considerations taken into account by him were within that discretion; second, that there were indeed special circumstances affecting environmental litigation: “When this background of special, and in some ways peculiar, legislation is recognised, it will be appreciated that the provision in the Land and Environment Court Act as to costs appears in a statutory context which alters, to some extent, the assumptions upon which civil litigation in this country has hitherto, ordinarily, taken place. Instead of a purely adversarial contest between two parties having individual, and typically financial, interests to advance, the contestants will be ranged as they were in these proceedings: on the one side an individual or representative body seeking to uphold one perception of the public interest and the requirements of environmental law; on the other side, a local government authority seeking to uphold another.” (per Kirby J, para 117). Ranged against this view, however, was the minority view that the legislature could have, but did not, make special provisions for costs, and that a change in the traditional approach might encourage unmeritorious actions. More importantly: “. . . any departure from the usual order as to costs by reference to the motives or conduct of the unsuccessful party would typically, if not invariably, work injustice on the successful party. This fundamental principle informs the content and application of the court’s discretion to award costs. By any reckoning, the cost of litigation in this country is high. I can see no justification in legal principle or social justice for depriving a successful private litigant of his or her costs simply because that person was unlucky enough to get caught up in ‘public interest litigation’. Nor does it make any difference to that conclusion that the unsuccessful party had arguable submissions or that the proceedings involved an analysis of statutory provisions that should prove helpful in future cases or that the subject matter of the litigation was a matter of public controversy. And what applies to private litigants applies to public authorities, when they are litigants, unless the legislature has enacted a law to the contrary.” (per McHugh J, at para 96).

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The High Court has since been quick to assert that Oshlack was not intended to introduce a new rule of general application in environmental actions. In South-West Forest Defence Foundation v Department of Conservation and Land Management71, the Court ruled that nothing in that decision “requires that every time an individual or body brings proceedings asserting a defence of the public interest and protection of the environment, a new costs regime is to apply exempting that individual or body from the conventional rule.” (per Kirby J at para 5). Such a fundamental reform would require legislation. There were special circumstances in Oshlack, particularly the New South Wales legislation under which the action had been brought. Nonetheless, the Oshlack decision provides a firm foundation for a “public interest” approach to costs in applications to the Court under s.123 and, by analogy, in other statutory contexts in which similar rights of public access apply. Yet it is not a general rule. The general rule remains that costs should follow the event; the exception is that in certain cases, having regard both to the character of the litigation and the potential for injustice to the other side that was highlighted by the minority in Oshlack, the Court may depart from that rule. Orders for security for costs are often sought by defendants in section 123 cases, but the Court has established that it is not always appropriate that they should be granted. The Court has a broad discretion and may have regard to any relevant circumstance. The strength of the applicant’s case and the impecuniosity of the applicant are matters which may be taken into account in the courts decision in this matter.

5.13 Legal aid Legal aid is theoretically available in New South Wales for environmental and planning matters, but it is in practice difficult to obtain funding. There have been sharp reductions in legal aid funding overall, and there is a tight means test. The Legal Aid Commission is regarded as a very political body, and there is concern that environmental law recipients of aid are often depicted simply as delaying important development. In high profile cases, there is the possibility of the Environmental Defenders Office taking on the case, but their funding position is also under threat from government at both state and federal level. The likely costs of an action before the Land and Environment Court can only be estimated in this section. It should be remembered that the Court operates at Supreme Court level so lawyers are seen as having full justification for charging Supreme Court fees. Legal fees alone therefore range from approximately $5,000 to $12,500 per day (these figures are open to debate), depending on the complexity of the case and the number and experience of the lawyers involved. The costs of expert witnesses for preparing reports and giving evidence can increase that sum in large cases to as much as $20,000 per day, without allowing for the additional costs of the parties, such as local authorities, incurred in staff preparation times. 71

[1998] HCA 35 (May 20, 1998)

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The costs would usually be at the lower end of this range in the majority of merits matters. Legal representation is often of a cheaper variety, and the level of technical expertise need not be as high.

5.14 Alternative dispute resolution ADR plays an increasingly large part in the New South Wales system. Two main methods are used by the Court: mediation and conciliation conferences.

5.14.1 Mediation 5.14.1.1 Availability of mediation Mediation is the more popular of the two, and probably the more familiar. It is defined as “a structured negotiation process in which the mediator, as a neutral and independent party, assists the parties to achieve their own resolution of the dispute”72. It is available for Classes 1 to 4 of the Court’s jurisdiction, and must be voluntary. If one party does not agree to mediation, the Court has no power to direct that it occur. It takes place on a without prejudice basis. The basic rules are established by Part 5A of the Court’s Act73. Statements and materials presented during mediation remain confidential and are not placed on the Court’s file, nor is there a report from the mediator on the file. Ideally, mediation will take place after the service of relevant documents and before the matter is set down for hearing. In appropriate cases, objectors should attend the mediation to ensure that the interests of all interested persons are taken into account in any settlement. Parties must ensure that the person attending mediation on behalf of the party has authority to settle the matter. Each party must serve a statement of position and issues upon the other side at least 7 days before the mediation date. The mediation itself, if it is under the auspices of the Court, will be conducted by the Registrar or the Assistant Registrar, who are both trained and accredited as mediators. It is usually held at the Court’s conference rooms, although it may be on site. The mediators are clear that their role is only to facilitate a solution, and to help the parties to reach a solution. They will not and cannot decide the matter for the parties. 5.14.1.2 Outline of the process An opening session is addressed first by the mediator, and each party then makes opening statements. An agenda is established and joint discussion between the parties (with the mediator facilitating) follows the course established by that agenda. The mediator will then usually meet each party separately in “caucus”, following which joint and other private sessions of the parties are held. If agreement is reached it will normally be reduced to writing on the spot. If the parties reach agreement at the mediation, it is up to them to decide how to resolve the matter, for example by consent order or by terms of settlement. The Court does not always consider it appropriate to act as the consent 72

LEC Act, s.61B(1). LEC Act, Part 5A, inserted from January 1995 by the Courts Legislation (Mediation and Evaluation) Amendment Act 1994 73

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authority (or to issue consent orders) in such matters and may think it best, in Class 1 matters, that the Council itself now act as the consent authority, in the terms as mediated (eg where the appeal follows a deemed refusal of an application). In such cases amended plans and details may need to be publicly re-notified by the Council and a suitable time will be allowed for this to occur. The Court will not always provide its consent to mediated agreements. It must be satisfied that the agreement is in the public interest rather than just that of the interest of the two parties involved (and anyone else who may have attended), and there have been many instances where the Court has refused to approve such agreements. It will often seek proof that the Council, for example, has contacted all those who expressed an interest in that matter at an earlier stage, and advised them of the terms of the mediated agreement, and may even provide for those objectors who maintain serious objections to be heard by a judge or assessor. 5.14.1.3 Extent of the practice From the commencement of the mediation scheme on May 1 1991, up to 31 December 1995, 304 matters were referred for mediation, for which the overall official settlement rate was 63%. By using 880 hours of mediation, there was an estimated saving of 502 Court sitting days. It is likely, however, that these figures do not reflect fully the extent of mediation taking place in environmental and planning matters. In addition to the Court’s own mediation service the Court is required to provide a list of approved mediators74, but it has no means of checking the extent to which they are used. The Chief Judge is required to update this list on an ongoing basis, and she indicated to us a degree of concern with the present list. She intends to take a more active approach to ensure that those on the list are not only suitably qualified but also are regularly engaged in planning and environmental mediation. ADR has turned into something of an industry in New South Wales, and the Court is anxious to ensure that parties to the Court enjoy access only to suitably qualified and experienced mediators.

5.14.2 Conferences 5.14.2.1 availability The second major type of ADR used by the Court has been the conciliation conference. Originally it was obligatory for the parties to attend such a conference, but this was an unpopular and unsuccessful process, reflected in an unwillingness on the part of the parties to resolve the matter at the conference. When the compulsion was lifted, the number of conferences declined dramatically, although there has been an upswing in their popularity in more recent years. Conferences are now held at the request of both parties and are presided over by an Assessor, usually on site. They offer an informal arena for the resolution of disputes, and tend to be used more for areas of technical dispute. If the parties reach an agreement on site, the Assessor may exercise the discretion of the Court to endorse that agreement as a decision of the Court following the conference. In 1995, 22 appeals were resolved through conferences as opposed to 4 in 1994. This rose to 56 in 1996. The Court is now becoming concerned that some parties are using the conference facility to arrive at a fast 74

LEC Act, s.61H.

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track solution to their dispute, and there are problems associated with reaching any level of complex agreement while on site. The Court is trying to standardise its approach to these situations. The parties may jointly invite the assessor to decide the matter if there is no agreement between them at the conclusion of the conference and it is at the assessors discretion whether he or she will so decide or require the matter to go on to a full hearing. 5.14.2.2 Outline of the process The initial arrangements are much the same as those for mediations in terms of voluntariness, notice and venue. The Assessor will open the conference by a statement of its purpose and an early indication of what is likely to happen. An address by each party then follows. Most conferences are conducted on site and a site inspection will occur following which joint discussion will continue, but there is no “caucus” as in mediation. Expert and lay evidence may be discussed off the record. A short adjournment may be necessary. If there are issues outstanding between the parties at the end of their discussion, they may ask the Assessor to decide the issue, and this is a major difference with mediation where the mediator only facilitates the agreement by the parties. If there is a failure to agree at the conference, the assessor is disqualified from hearing the later appeal (unless both parties request it)75. Confidentiality is maintained: anything said at the conference remains on a without prejudice basis.

5.14.3 Other ADR options There are a number of other ADR options open to the Court, although these are not as popular as the two discussed above. These are: (1) independent expert appraisal, where an independent expert advises on the technical issues of a case and reports to the parties jointly; (2) neutral evaluation, which is defined in the following terms: “a process of evaluation of a dispute in which the evaluator seeks to identify and reduce the issues of fact and law in dispute. The evaluator’s role includes assessing the relative strengths and weaknesses of each party’s case and offering an opinion as to the likely outcome of the proceedings, including any likely findings of liability or the award of damages”76. As with mediation, the evaluator is a neutral third party intervener, but the role is different: it is to assess the case at an early stage and advise as to the likely outcome. It involves balancing the relative strengths and merits of each party’s case.

5.14.4 Evaluation Members of the Court with whom we discussed the matter felt that ADR has the potential for use in many more cases than at present. They would agree that certain types 75 76

LEC Act, s.34. LEC Act, s.61B(2).

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of case are more suitable for mediation than others, but they would not accept that larger cases are, by nature of the sums and complexity of issues involved, unsuitable for mediation. There are some classic examples of mediation succeeding in cases worth many millions of dollars, involving many issues, many parties and interested third parties. Yet there are also a number of concerns about the manner in which ADR has developed and the problems that have arisen with its use, to which we return below.

5.15 Special cases With two exceptions, there are no special immunities, and no notice or evidence requirements, which extend solely to public authorities; nor do tribal groups have a privileged position under the New South Wales system. The exceptions are: (1) the Court is bypassed when a licensing decision of the EPA involves a public authority or one acting on behalf of the Crown. The matter is referred to the State Premier for decision. Disputes between government bodies are dealt with at a political level. However the EPA frequently prosecutes government agencies for environmental offences. (2) The Crown is entitled to appear before the Court in any case in which the public interest or any Crown interest may be affected or involved77; and there is a special additional power for the Attorney General or the State Minister for Planning and the Environment, to intervene in any proceedings before the Court78.

5.16 Volume of business The Land and Environment Court maintains comprehensive statistics in relation to its caseflow, and in this section we deal with the major five classes of jurisdiction for the last period for which full figures are available (up to December 1995). Table 14 below sets out the caseflow for the preceding three years. Table 14: caseflow in the Land and Environment Court 1993-95

Registrations Class 1 Class 2 Class 3 Class 4 Class 5 Total

77 78

LEC Act, s.64(1) LEC Act, s.64(2).

1993

1994

1995

710 326 440 211 47 1743

865 264 395 241 47 1812

1038 225 208 256 86 1813

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Restorations Class 1 Class 2 Class 3 Class 4 Class 5 Total

86 24 18 62 6 196

76 18 50 62 13 219

109 16 19 66 9 219

Disposals Class 1 Class 2 Class 3 Class 4 Class 5 Total

714 315 391 264 60 1744

867 298 374 286 48 1873

1105 246 315 303 72 2041

Pending Class 1 Class 2 Class 3 Class 4 Class 5 Total

321 135 218 109 32 815

395 119 289 126 44 973

436 114 201 145 67 963

There was a steady increase in Class 1 over that period, but this was offset by a downward trend in Classes 2 and 3 and which in turn led to an overall decline in pending caseload. Total disposals also increased in the last full reporting period, partly due to an increase in the number of Assessors (now at its maximum level). Median disposal times (from file lodgement to decision) are set out in Table 15 below. Table 15: median disposal times 1993-95 (months)

Class 1 Class 2 Class 3 Class 4 Class 5

1993 3 2 3 4 5

1994 4 3 4 3 6

1995 4 4 5 4 6

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5.16.1 Appeals from the Court As we have seen, appeal lies from an Assessor’s decision, on a question of law, to a Judge of the Court. Such appeals must be lodged within 28 days of the order or decision being appealed against. In 1995, four appeals were lodged under this provision. From a decision of a Judge certain rights of appeal lie, by leave of the Court, to the Court of Appeal (not to the Supreme Court) and for criminal matters to the Court of Criminal Appeal. A further right of appeal lies from there, by special leave, to the High Court of Australia. At the end of 1995 there were 48 appeals from the LEC waiting to be heard in the Court of Appeal, compared to 47 at the beginning of the year. The figures for appeals lodged in recent years are as follows: Table 16: appeals from the Land and Environment Court

1995

(1994)

Court of Appeal: N/appeal with appointment N/appeal w/o appointment Summons for leave to appeal

18 9 10

(22) (5) (5)

TOTAL

37

(32)

Court of Criminal Appeal: Conviction and sentence Sentence only Costs Stated case, s 5A

2 0 0 3

(1) (1) (1) (1)

TOTAL

5

(4)

The Registrar’s informal estimate in relation to classes 4 and 5 (the main classes involved) is that in Class 4, about 6 appeals are made each year to the higher courts, while only 1 or 2 matters go on to the Court of Criminal Appeal. That court consists of three judges of the Court of Appeal, and its proceedings on appeal are by way of rehearing of the evidence given in the Land and Environment Court.

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5.17 The parties The Court does not maintain statistics of the type of parties who use the Court. However the following is an informal estimate kindly provided by the Registrar: (1) In Class 1 and 2 matters the respondent will be a council/local authority in 95% of cases, and the applicant figures will be quite evenly distributed between developers and ordinary residents; (2) In Class 3 (valuation and compensation matters), there is a fairly even split between the valuing authority (the State Valuer General) and the various government departments and authorities acquiring land. (3) In Class 4 civil enforcement matters, the majority of cases have an individual as applicant and the council as respondent, with the holder of any consent for development also a respondent. Conservation groups and NGO’s will form a small percentage of the applicant numbers here. However quite a lot of cases are brought against a Minister or government agency, and this is increasing. (4) In Class 5 criminal matters the Environment Protection Authority is the highest user in terms of initiating prosecutions, although other government agencies also initiate prosecutions. About half the accused are individuals (including company directors), and the remainder are corporate bodies.

5.18 Evaluation 5.18.1 General impressions We encountered general satisfaction amongst practitioners with the performance of the Land and Environment Court, and it was also the model most frequently cited to us by judges and practitioners in other jurisdictions as the leader in its field. There was broad consensus that this is a highly effective body, which deals speedily and competently with planning and building matters, both as to the merits and the law, even although the resources available to it are limited. Those criticisms which have emerged are related more to the structure of the planning system within which the Court operates, rather than to either the structure or powers of the Court. Yet it is true that the Court has not been able to act as informally as it may have been envisaged that it should, and as many would like. This is a common theme (Queensland provides a further example) and there are probably many reasons for it. Perhaps the most likely is that a court of this level of seniority within the judicial system, and sometimes dealing with issues of great complexity, will always find it difficult to shrug off the habits that attach to comparable judicial work elsewhere. There are also the expectations of clients and their counsel. Millions of dollars can hang on a planning or environmental dispute, and clients want high quality legal representation. Hence the increasingly legalistic nature of an already technically complex planning system.

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5.18.2 Procedural rationalisation and substantive integration These two are probably the primary objectives of the New South Wales experiment, and its most obvious achievements. Early cynicism about the role of the Court was reflected in the nickname of the “Parks and Gardens Court”, but that has gone now. Within its remit the Court is given the power, and has as its practice, to bring a wholly integrated approach to its functions. We can identify integration that occurs at four levels by comparing it to the allocation of the comparable functions in England and Wales: (1) integration of appellate jurisdiction under different regulatory statutes: the Court’s jurisdiction is the broadest of any of the models we have examined in this study. Like the Planning Inspectorate for England and Wales, its jurisdiction extends to all planning appeals and to all appeals relating to environmental discharge permits. However, it also extends to matters which in England and Wales either do not exist (eg, sub-division consents), or are assigned to other bodies, including building controls appeals, rating appeals (Rating and Valuation Tribunals and Courts) and compensation disputes (the Lands Tribunal). (2) Integration of regulatory and other sources of jurisdiction: the Planning Inspectorate’s jurisdiction relates wholly to statutory regulation. The Court’s extends also to criminal matters, which in England and Wales are matters for the magistrates’ court and the Crown Court in the first instance. It also extends to judicial review, which is in England and Wales the prerogative of the High Court; and to civil enforcement of statutory regulation, which in England and Wales lies with the County Court and High Court. (3) Integration of remedies: there are two important provisions of the Court’s enabling legislation that distinguish its jurisdiction from any comparable court. First, the obligation to deal with the case as a whole. The Act79 requires that: “The Court shall, in every matter before the Court, grant either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by that party in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters may be avoided.” That is a requirement not to allow want of formality to stand in the way of appropriate remedy, and to ensure that, so far as possible, all matters arising between the parties which are within the Court’s jurisdiction, are dealt with. The second, and more radical, relates to the Court’s exercise of its judicial review function. An important amendment to the Act80 in 1997 requires that the Court 79 80

LEC Act, s.22. LEC Act, s.25A, inserted by the Environmental Planning and Assessment Legislation Amendment Act

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should not automatically strike down a development consent which is successfully challenged as invalid on the ground of some failure to take prescribed preliminary steps. The Court has power instead to suspend the operation of the consent and to specify what terms would need to be complied with to validate it, such as carrying out again steps that have already been carried out, or steps not already commenced or carried out, or “terms requiring acts, matters or things to be done or omitted that are different from acts, matters or things required to be done or omitted by or under this Act or any other Act.” Once the consent authority certifies to the Court that the specified terms have been substantially complied with, the Court may make an order lifting the suspension and declaring the consent valid81. Alternatively, the Court may endorse a fresh grant of an altered consent. It is the duty of the Court to consider making an order under those provisions instead of declaring or determining that a development consent is invalid, whether in whole or in part82. (4) Vertical integration: the Court is a hybrid body. In some jurisdictions it sits as a single court, with Judges or Assessors sitting alone, or together. In other jurisdictions, it becomes effectively a two-tier court. As we have seen, it is not open to any party to raise a point of law in proceedings before an Assessor, unless it has been raised at the call-over or leave is given in the proceedings. An Assessor may at any time in the proceedings refer a question of law (or the issue of whether a particular question is a question of law) to the Chief Judge for determination by a Judge83. Such a reference must be made if any dispute arises as to whether there is power for the Court to grant leave to hear a question of law84. This is a flexible arrangement. Proceedings before the Assessor do not simply stall pending receipt of a Judge’s determination. They may continue unless the Chief Judge otherwise directs, and provided the Assessor does not make an order or decision to which the question of law is relevant until it has been determined by a Judge85. This allows a less disruptive programming of business than is common in unintegrated jurisdictions. In England and Wales, for example, a point of law arising in a planning appeal will normally be determined by the inspector or, in a case where the inspector has jurisdiction only to report, by the Secretary of State. That decision is then challengeable by statutory appeal or application to the High Court. If it is found that the point has been wrongly determined, the matter must be remitted for redetermination. The process of judicial challenge and redetermination may take as long as two years. Under the NSW system, it has been known for such a determination to be made within 24 hours, and without serious disruption to the proceedings before the Assessor. This vertical integration is apparent also in the arrangements for appeals from Assessors’ decisions. As with a planning inspector’s decision, there is no appeal on 1997. 81 LEC Act, s.25C. 82 LEC Act, s.25E. 83 LEC Act, s.36(5). 84 LEC Rules, Part 13, r.16(h). 85 LEC Act, s.36(6).

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the merits. Appeals on law (except on points already referred and determined under the arrangements outlined above) are to a Judge of the Court, not to the Court of Appeal86. The Judge may remit the matter to the Assessor for determination in accordance with the decision of the Court, or make such other order as seems fit. Other appeals on points of law lie to the Supreme Court87.

5.18.3 Speed and delay In this respect the Court has an exemplary record. By any international comparison, its dispatch of business is remarkably quick. The case processing times outlined above demonstrate that an integrated judicial system can be part of the solution to case backlogs. The Court is committed to ensuring that median case disposals are kept at this low level, and works hard to maintain it. The absence of any common law jurisdiction is probably an advantage. We found that amongst practitioners there was high regard for the performance of the Court and the expertise of its judges and assessors. In particular, successive Chief Judges were said to have contributed strongly to the Court’s performance because of their administrative ability and determination. We believe that the integrated jurisdiction and the case management regime both lie at the heart of this. The Court’s consistent practice on adjournments and the use of regular callovers ensures that the its ambition for swift disposal triumphs over the convenience of the parties and their professional advisers. We were told that there was dissatisfaction and resistance initially amongst lawyers to the case management process, particularly following the 1990 Practice Direction, but that practice has simply adapted to it over time. The Registrar’s role in combining administration with quasi-judicial functions has proved to be an efficient use of the office. ADR also expedites caseflow through the Court. Many sitting days are saved by encouraging the parties to reach an amicable and fully agreed settlement. In addition to those cases which reach the Court and so are recorded in its statistical records, there are many others, of which the Court has no record, that are dealt with outside the Court by non-Court mediators. There is a high rate of discontinuance by applicants of their merit appeals, prior to hearing, due to council approval of applications following direct negotiation or use of court officers or external mediation. There are other factors which aid case management and reduce hearing times, but which are less readily quantifiable. They include the expertise and specialisation of Assessors and Judges; similarly the relatively small group of lawyers who are in regular practice before the Court. Neither the bar nor the bench in any particular case are likely to require education in the practice or procedures of the Court, or the law relevant to the dispute. The Court is continuing to review its practice and procedure to ensure that it can meet the standards it has set itself. In 1990, concerns had been expressed by the Parliamentary Public Accounts Committee that environmental disputes were becoming too long and that councils were spending far too much money and time on such litigation. The Court 86 87

LEC Act, s.56. LEC Act, ss.57 and 58.

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took action by a complete overhaul of its practice directions and rules and managed to cut the average hearing time of a merit appeal by almost a half. The median hearing time for a merit appeal in Classes 1 and 2 is now about two days, stretching to three if travelling some distance for a site visit.

5.18.4 Incorporating expertise The possession of appropriate expertise is a statutory requirement of appointment of Assessors, and an implicit requirement for the appointment of Judges. We are persuaded, both from personal observation and from the level of satisfaction amongst the users of the Court, that the Court has succeeded in equipping itself with the necessary expertise to handle its caseload competently. Its particular hallmark is the mix of Assessors and Judges, and the flexibility with which matters may be assigned to them. In our view, the role of the Assessors is better developed than that of the Commissioners in New Zealand, who have a broadly similar function. Some practitioners may still prefer to have a Judge sitting on a merits appeal, but that aspiration is both unrealistic and unfair. Practitioners seem generally now to acknowledge the competence which assessors have demonstrate in their handling of merits matters. Further, we encountered positive commendation of the interaction between Assessors and Judges in matters where there has been a sitting by a multi-member court. Indeed the possibility has been considered of adopting a similar approach to matters in Class 4 (civil enforcement and judicial review) and Class 5 (criminal) where Assessors are presently not allowed to sit. One reason why the Assessors system has worked well appears to be the terms of appointment. Appointment as an Assessor is a positive career move and those appointed can normally expect to remain in post until retirement. Their pay, though lower than that of the Judges, is not significantly out of line with what they might receive in private practice. This is obviously an important consideration in attracting people of high calibre to the position. However, one criticism which we heard of the Assessors was that, when faced with high calibre legal representation in their Court, as they often are, they appear more reluctant to assert themselves than a Judge would be. This should not be surprising: Judges come from a background of advocacy in the superior courts, and understand well the techniques and expectations of the Bar; Assessors do not. A similar dilemma faces the Planning Inspectorate in England and Wales. Even with its range of Judges and Assessors, the Court does not possess expertise across al technical areas likely to arise in litigation before it. Matters involving noise emissions were cited to us as an example. The Court’s power to call its own expert witnesses is, as we have seen, rarely used. In addition to the problem of the expense having to be borne from the Court’s funds, there is a problem of perceptions of fairness. For example, a case where it might be thought appropriate for the Court to appoint its own expert is where the parties have failed to provide one themselves, perhaps because of lack of resources. There may be a gap in the evidence on one side, but for the Court to try to overcome it by deploying its won resources would raise questions of balance and procedural fairness. There is a dilemma here for any decision-making body that has both

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a public interest role yet relies upon adjudicative techniques in an adversarial system. The Court’s structure forces it into an adjudicative mode. It would be easy to overlook the informal sharing of expertise between Judges and Assessors that is facilitated by their physical location. Notwithstanding its ability to hold local hearings, the great bulk of the Court’s business is undertaken in a single building. This promotes a collegiality of approach behind the scenes. An Assessor, may, for example, consult a Judge for informal clarification and guidance about an issue of law that might be about to surface in a case before them; a Judge may sound out an Assessor for clarification on a point of technical detail.

5.18.5 Encouraging informality The Court’s legislation places a premium upon informality: indeed, matters in Classes 1, 2 and 3 are to be conducted “with as little formality and technicality, and with as much expedition” as the requirements of the legislation and the case will allow88. In theory, this was to be a flexible and non-legalistic jurisdiction, where proceedings would be much more simple than under the usual constraints of Supreme Court conditions, reflecting the special public interest nature of planning and environmental law. Things have not turned out quite like this. True, some of the trappings of legalism have gone. There are no wigs or gowns, there are no formal pleadings, the rules of evidence are relaxed and a relative air of informality prevails. But this is not a laissez faire peoples’ court: any aspiration to that style has buckled under the weight of the legal system within which the Court operates. The Court is frequently dealing with issues of the greatest importance in both financial and environmental terms, and this heightens the need both to have, and to enforce, rules which will ensure procedural fairness in its proceedings. Lawyers for the parties are unlikely to wish to foster informal proceedings in the Court, and given that the Court has an unlimited financial jurisdiction, it is not surprising that huge resources are available to ensure that all avenues of legal protection will be exhaustively explored, particularly by those acting for larger business concerns. In fact, the proceedings of the Court are conducted in a relatively formal fashion. The Court believes that a certain level of respect is desirable, and that this can only be achieved with insistence upon the usual forms of address and the usual seating arrangements to be found in any courtroom.

5.18.6 Alternative dispute resolution New South Wales has been a leading jurisdiction in exploiting the potential of ADR, and in planning a major role for it in diverting a large number of matters away from litigation. The Court has been a leader within the state on this area, and views ADR as a potentially very important part of its case management strategy. The theory is that by removing those cases where settlement seems possible from the system, one is left with only the most contentious to be heard by the Court. In addition, it can often remove a potentially contentious items from a forthcoming case by encouraging the parties to identify the points of difference, leaving only the core issues to be dealt with by full Court sittings. The figures do not take account of the extent of ADR taking place outside 88

LEC Act, s.38(1).

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the Court, whether by making use of the list of Court mediators or otherwise. It is also felt that a culture of ADR is beginning to pervade the entire system, and that promoting it at court level increases the probability that local authorities and others will use it to prevent matters making their way to the Court. A measure of the current enthusiasm for ADR is the widespread number of courses available to train would-be mediators, from bodies such as ACDC (Australian Commercial Dispute Centre) and LEADR (Lawyers Engaged in ADR). Many hundreds of lawyers have taken these courses in an effort to secure accreditation, and the Law School at the University of Sydney (in addition to many other law schools) has offered a course in ADR for the past number of years. One issue of debate is whether parties should be required to try ADR solutions before the Court will provide a full hearing. The LEC has experimented already with compulsory conciliation conferences, and now firmly takes the view that there is little point in forcing parties to try something which must, of necessity, be voluntary in order to succeed. Some also believe that those who wish to proceed directly to a court hearing should be entitled to such a hearing and that ADR must only ever be one of a number of dispute resolution options offered by the Court. The experience in relation to the popularity of conciliation conferences demonstrates the fact that, left to their own devices, parties may choose conciliation (or other ADR methods) for their intrinsic merit and not because they are obliged to do so. There is one other point in relation to ADR which is specific to areas of so called public law such as planning and environmental law. To what extent must the Court carefully examine the results of a mediated settlement between two private parties, or even between a private and a public party? Some would argue that the Court should make a consent order as of right and that if the parties manage to settle the matter between them, this should be enough for the Court. However, the Court is not inclined towards this view and has taken to close examination of those mediated matters for which consent orders are sought to ensure that the public interest is adequately protected in the situation. The point made by Court members is that it stands in the shoes of the original consent authority when granting such orders and is therefore obliged to give it the fullest consideration on the merits. The Court has not hesitated to refuse consent orders (requested following a mediated settlement) on public interest grounds, and sends out strong signals that it will not tolerate any effort to circumvent the usual public interest requirements in this way.

5.18.7 Cost of the system As with the other jurisdictions which we have studied in detail the issue of costs in the system remains a primary concern in New South Wales. We have discussed above the high level of legal content in the planning system and how the establishment of the Court seems not to have opened up public access. The high level of technicality in this area of law means that expert legal advice is necessary in all but the simplest of matters before the Court. Such expertise does not come cheap. Some estimates place the cost per day, for a reasonably sized action in the LEC, as anything from $20,000 to $30,000 per

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day. As we saw with New Zealand, legal guarantees of open access can be significantly undermined by the costs of effectively using such access. On the part of the development industry, there is some concern especially with smaller developers with respect to the costs in the system. There is a claim that many will not participate beyond the stage of an application being refused, because of the expense in terms of professional fees and the holding costs brought about by the length of time taken for resolution of an appeal.

5.18.8 Rules of evidence and procedure The 1980 Act provides much potential for the Land and Environment Court to limit the application of the formalities of the rules of evidence and procedure. This has indeed been done with the Court taking advantage of its independent status to strike an individual line on a number of matters. This is most striking in relation to the pleadings which the Court admits, and reflects an attempt to get away from the tit for tat exchange of documents which characterise pleadings in most jurisdictions and is seen to have been quite successful in narrowing the issues involved in many cases. The other main difference is the Court’s ability to do away with the rules of evidence, and the key word here is that the Court has the “discretion” to relax the rules of evidence. More often than not this will mean that the rules will apply as they would in any case before any court. But the Court retains discretion to relax the rules where these rules are inappropriate. There is a genuine concern about the risks of allowing too great a relaxation of formalities, particularly in cases where the stakes are high. Procedural rules exist to secure fair hearings, not to deny them. The other area where the Court takes a lead is on the issue of cross examination. If a party has not given prior written notice, leave is required from the Court before a party is allowed to cross examine in a merits appeal. Leave will normally be granted, but the Court thinks that retention of the power adds further to their discretion to cope with potentially bullying lawyers in its jurisdiction and limits the length of examination.

5.18.9 Remedies The Court enjoys a wide power in relation to potential remedies commensurate with its Supreme Court status and the unlimited nature of its financial jurisdiction. All the interviewees considered this to be appropriate.

5.18.10 Extent of jurisdiction In this regard the Court enjoys a far more integrated approach than is apparent in New Zealand, as the Class 5 jurisdiction is comprised entirely of criminal matters. There is broad agreement that it is preferable to have judges with specialist expertise deal with environmental crimes, as they are more likely to be able to appreciate the nature of the offence and the seriousness or otherwise of the matter. However there is a degree of difference of opinion amongst present and ex members of the Court in this regard. Some argue that the presence of the criminal jurisdiction is not appropriate, as it can cause delay in the Court and it provides the Court with the problem of dealing with differing

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standards of proof within the same set of facts, and potentially forces it to deal with the entire range of civil libertarian doctrines in the field of criminal law. On the other hand some argue that only a court with expert understanding can properly prioritise environmental crimes, and they would point with dismay to Court of Criminal Appeal decisions which have lowered fines imposed by the LEC. Perhaps one could hypothesise that there are differences of principle involved in this difference of approach. Could it be that some see the maintenance of the Court’s impressive disposal rates, without the added burden of criminal matters, is the priority and that the criminal jurisdiction is seen as too messy for the LEC to handle in its present context. Or the alternative view may be that there is a great need to put together a strong consistent line on environmental crime, still fairly much a fledgling area, to ensure that the area is taken seriously rather than a hit and miss approach, and that the best body for such consistency is the Land and Environment Court. It should be said, however, that the figures for criminal matters before the Court remain quite low, despite the rapid increase which can be detected in 1995. The civil enforcement jurisdiction continues to expand and is seen as a growth area, costs allowing.

5.18.11 Original jurisdiction It is difficult to detect any one body which can be characterised as the guardian of the New South Wales environment. It is certainly not the Court, in the sense that the New Zealand Parliamentary Commissioner fulfils that role. The closest one can find here, and this is reflected by an amount of public funding (both state and federal) and some vocal support from judges of the LEC, the Environmental Defenders Office ( despite the fact that it operates on a totally independent footing). There does not appear to be any concerted effort to provide a Commissioner type office in New South Wales, and the range of policy and educative functions of the EDO will continue to the best available. There is a sense in which such a body is always likely to be more independent of political influences by the nature of its establishment, but it should be remembered that most observers perceive that it likely to suffer in the present political climate in Australia.

5.18.12 Level of jurisdiction As in all of the jurisdictions which we have examined there is a continuing debate regarding where ultimate power should lie with regard to planning decisions. We have seen above that the Court is entrusted with stepping in the shoes of the original consent authority and therefore has the final say on the merits of the matter. It can use its own expertise to impose a solution rather different from that of the local authority, but seems quite reticent about designing a new approach, seeing its role as primarily one of an adjudicator rather than that of an inspector in the inquisitorial sense. As regards the appropriateness of the Court as the ultimate arbiter on the merits there is little complaint with this, despite occasional rumblings from bodies such as the local authorities that their power is being usurped. The Court is often accused of acting politically in deciding merit appeals on development proposals. It can of course always be argued by the Courts in such a scenario that the existence of uncertainty in many areas of the law, when

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combined with the use of vague concepts in planning instruments, make judicial discretion an inevitability. The Court is stepping into the shoes of the consent authority in a full rehearing of the merits. As that original consent authority is itself a political body, some would allege that we cannot avoid the conclusion that the Court is part of the political process. Quite often, it should be said, the councils abdicate their decision making responsibility by failing to deal with a controversial proposal within the allotted time, in the knowledge that it will go directly to the Court for decision. The Minister for Urban Affairs and Planning retains extensive call in powers, which are distributed over a wide range of statutes. The power is quite different from that enjoyed by the Secretary of State for the Environment in England. There seems to be a feeling that certain jobs/projects require the centralisation of power in the Minister, and specific legislation may be created to provide him with the power to run an entire project. A good recent example is the Olympic site at Homebush in Sydney, where the Minister was provided with the power under primary and secondary legislation to proceed practically without interference from the Court. Local authorities have no jurisdiction and the power of judicial review is the main protection against abuse of his powers. The functions of the English Planning Inspectorate, such as they exist in the New South Wales jurisdiction can be most easily characterised as analogous to those carried out by the Assessors in their Class 1, 2 and 3 jurisdiction. The background of the personnel is broadly similar to that of planning inspectors, but there is a very strict line on the examination of legal issues which the Assessors cannot cross and which extends also to the enforcement jurisdiction of Classes 4 and 5.

5.18.13 Definition of jurisdiction Most of the matters dealt with by the Court are defined by the Environmental Planning and Assessment Act 1979, which prescribes the rights of access that exist to it. However, the jurisdiction of the Court has continued to grow and it has since been granted a range of other functions under legislation extending from the Aboriginal Land Act 1983 to the Local Government Act 1993 and the EOPA Act 1989. One area of relevant jurisdiction not covered by the Court is that of the common law. There is little in the way of ongoing debate about the possibility of extension. but it appears that the Court is unlikely to welcome such a move due to the potential effect of prolonged common law matters on its caseflow. Former Chief Judge Cripps has suggested that such an extension of jurisdiction would lead many to place an environmental angle on their particular claim so as to avail of the speedier caseflow in the Court, eventually reducing the efficiency of the Land and Environment Court.

5.18.14 The treatment of central and local government There is no special treatment accorded to either level of government.

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5.18.15 International obligations The Court is not obliged to take cognisance of international obligations entered into by the federal government in Canberra unless that obligation has been incorporated into domestic legislation, whether state law or federal law to which the state courts must have regard. In this, New South Wales reflects the English approach to obligations from international treaties89.

5.18.16 Administrative costs of the system The fact that the Court is at Supreme Court level is seen by some as somewhat of a luxury, and that this is bound to result in higher cost to the taxpayer even if only in terms of salaries. The other question raised is use of the assessors. While they are seen to earn their keep when dealing alone with merits matters it has been suggested that multimember hearings are a waste of valuable court time and are often designed simply to make it look as though a thoroughly “rounded” decision is being made. Some see this as a facade, and think that savings could be achieved in this area by reducing the number of multi-member sittings. It should be mentioned that although figures are not available, the definite impression is that these are in decline in any event, mainly because the assessors are needed to deal with their own merits cases and the increase in criminal and civil enforcement work.

5.18.17 Balance in the system We found general acceptance that the Court fulfils the basic requirements of a large cross section of the users of the Court. The main concern of many users is speed and the Court certainly delivers that. The other point sought by most is quality, in the sense of a high level of legal expertise and the personnel to adequately administer whatever legal framework has been imposed upon them by the legislature, and the Court is considered to have that. Developers complain about delays in the process but these seem to be usually at the local authority rather than the appeal level. The issue of use of the appeal and civil enforcement processes by business competitors also arose, but as in other jurisdictions few had any concrete suggestions as to dealing with it.

5.19 The Court in practice: analysis of the scenarios The Court’s functions in the areas of environment and planning, both for appeals and for judicial review, are very broad. Unusually amongst the countries surveyed, the Court would have jurisdiction in all the scenarios, except that of toxic torts (scenario 4).

5.19.1 Scenario 1: highway proposal A proposal to widen an existing highway between two towns, each with a population of about 150,000, to convert it from an ordinary road into a three lane motorway in each direction. The highway crosses local authority boundaries and has attracted significant local opposition. 89

But see Leach v National Parks and Wildlife (1993) 81 LGERA 170 where there is discussion of the applicability of the precautionary principle, although this was not expressly included in the legislation.

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Whether or not the highway is confined within the boundaries of one State or not, it is likely that a project on such a substantial scale would depend heavily on Commonwealth funding. One of the main consequences of this is the application of the Environment Protection (Impact of Proposals) Act 1974 and its Administrative Procedures, which deal with the need for environmental impact assessment for such large scale public projects. One of the areas specifically mentioned under the Act is Commonwealth grants to the State for activities such as road building. It is likely that the initiative for such a proposal would come from the State authorities rather than from a local council acting on its own. That decision could realistically only be taken following the setting up of a Commission of Inquiry, which would involve public participation, along with technical assessment of the likely impact by means of the Environmental Impact Statement. The Commission may be convened as of statutory right in certain cases or at the Minister’s discretion (or that of the council) in others. It is an advisory, and not a determining, body, whose responsibility is to report its findings to the Minister for his ultimate decision, and to ensure that he has all the relevant material at his disposal. The conduct of the Commission’s inquiry follows a procedure broadly similar to that of public local inquiries in England and Wales. Involvement of the public, and use of the technical expertise of the Commissioners is vital to the success of the Inquiry. The hearing process provides an opportunity for a site visit to take place, and for residents and conservation groups to explain their concerns. In most cases such as this, there will be a high volume of public submissions. The procedure is informal and the rules of evidence do not apply strictly. The practice is to hear all parties who have lodged a submission. The Commissioners have broad discretion. They may propose conditions to the development, or recommend outright refusal of the application. The decision of the Minister on the basis of the Commission’s report is challengeable in the Land and Environment Court by judicial review, where the applicant will commonly seek to demonstrate some procedural irregularity in the decision making process, such as the inadequacy of the Environmental Impact Statement. The application would be brought under the Class 4 jurisdiction, which covers civil enforcement and judicial review. The final decision on the merits rests with the Minister, and the Court will lack jurisdiction to investigate the merits as it would for administrative appeals in planning matters. The lay assessors are not involved in hearing such appeals. Rights of appeal from Land and Environment Court decisions on judicial review lie to the Court of Appeal. The Land and Environment Court has allowed open standing for judicial review, and particularly in Class 4 (which deals also with interim enforcement orders) it has adopted a broad definition of what constitutes public interest litigation. This liberal attitude is reflected also in the Court’s attitude to awarding costs, which need not always follow the event.

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Judicial review under Class 4 constitutes the single largest element of the work of the Land and Environment Court outside Class 1 development appeals work.

5.19.2 Scenario 2: manufacturing facility on greenfield site A proposal to construct a new manufacturing facility on a green field site adjacent to an existing urban area. The facility will generate emissions to the atmosphere and to surface waters. A local citizens group has been established to oppose the proposal. Appeals on the merits of licences and permits issued by local authorities and governmental environment agencies are very common, and many of these reach the specialised jurisdiction of the Land and Environment Court on appeal. There is a degree of diversity as regards the granting of such permits as required by the facility in our scenario. While land use and planning issues are for the local authorities, those on the pollution control are assigned to Environment Protection Authority (a State body). The developer will require a town planning building consent and approval (in relation to land use planning controls) and a permit from the relevant authority for the proposed emissions. There is a standard procedure to be followed in filing applications to both authorities. The jurisdiction of the Land and Environment Court comes into play only when a challenge is made to the decision of the granting authorities. Class 1 of the jurisdiction of the Court deals with the environmental planning and protection issues, whereas Class 2 deals with local government, building and miscellaneous appeals. This proposal would almost certainly fall into the category of designated development under Schedule 3 of the Regulation to the EP&A Act (which deals with categories such as chemical facilities). In relation to the consent, the applicant has 12 months in which to appeal the authority’s decision (but only 28 days for objector appeals in a case of designated development) under section 97 of the Environmental Planning and Assessment Act. For the building permit, the applicant also has 12 months, under section 105 of the Local Government Act 1993. The council or consent authority can be deemed to have refused the application if it is not dealt with within 40 days (or 60 days in the case of a designated development). Pollution control permissions are of two types. Firstly there is the need for pollution control approval under the Clean Air Act 1961 and the Clean Waters Act 1970. Prior to 1983, separate approvals had to be obtained under each of the Acts dealing separately with each of the subject areas. However now it is possible to obtain a single pollution control approval to cover all aspects. Secondly, and in addition to this approval, there may be a need for a pollution control licence. While both instruments are based on similar procedures, approvals are long term whereas licences are concerned with the day to day control of emissions and have to be renewed every year, and require ongoing supervision by the consent authority and/or the EPA.

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The present proposal could very likely become the subject of a public inquiry. Alternatively it could be a designated development, requiring environmental impact assessment (under Part 4 of the EP&A Act). In the event of the hearing remaining within the remit of the Land and Environment Court, expert and lay objectors would have the opportunity to participate. The hearing may adjourn for a site visit if appropriate. Although the proceedings are conducted in an adversarial manner, in practice, appeals to the Land and Environment Court are by way of a rehearing on the merits and fresh evidence can be presented by either side to the dispute. In addition, the rules of evidence are formally dispensed with, and the Court hears whatever evidence it rules to be relevant. The other issue raised by the scenario is that of zoning. There is no appeal against rezoning (as might well occur in such a situation) and the Land and Environment Court has no jurisdiction in such a case, except possibly in the matter of judicial review if a case can be made. The Minister supervises the zoning regulations.

5.19.3 Scenario 3: breach of discharge consent A manufacturing plant which was constructed in the late 1960’s in an otherwise urban area is apparently breaching the terms of a discharge consent. Local residents are fearful of the potential implications of this for their health, and wish to take proceedings. This scenario raises two distinct paths to enforcement, the civil route under Class 4 or the criminal route under Class 5. The Class 4 jurisdiction of the Land and Environment Court allows it to exercise civil enforcement powers in environmental and planning disputes. It has the power to make a wide range of orders, including interlocutory injunctions which would be the most obvious solution in this case. As we have seen, the right to make such an application is open to any person. The grant of an injunction remains at the court’s discretion. In a number of major cases this has enabled an injunction to be granted which could not have been granted under the equivalent Equity jurisdiction of the Supreme Court. Applicants have the alternative of seeking a declaration from the Court concerning the legality of the conduct complained of, which may be coupled with the other remedies available. Criminal proceedings are brought at first either in the Local Court or in the Land and Environment Court, these offences being mainly related to minor EPA or building regulation offences. Private prosecutions are possible, but rare. From this level, they may progress to the judges of the Land and Environment Court under Class 5 jurisdiction, although appeal lies to the Court of Criminal Appeal on criminal matters only. More serious environmental crimes may be prosecuted in the first instance in the Land and Environment Court, as the potential penalties are larger.

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5.19.4 Scenario 4: toxic tort An adult male claims to have contracted health damage as a result of inhaling smoke borne particles emitted from a manufacturing facility nearby. He wishes to commence proceedings against the owners of the plant. The jurisdiction of the Land and Environment Court is confined to those statutes listed in the 1979 legislation, and therefore it has no jurisdiction to deal with common law claims such as toxic torts. Hence, any action would be commenced in the general State courts, with ultimate rights of appeal to the Court of Appeal and, by special leave, to the High Court of Australia. The issue of whether they should in principle be brought within the jurisdiction of the Land and Environment Court remains controversial. Former Chief Judge (of the Land and Environment Court) Cripps strongly opposes such a move, on the grounds that entertaining common law claims would tempt many to put an environmental twist on their claim, so as to avail themselves of the speedy process in the Land and Environment Court, with the result that the Court would become flooded with litigation.

5.19.5 Scenario 5: 100 new dwellings on greenfield site A housebuilding company proposes to build 100 new dwellings on a greenfield site that is presently being used for agricultural purposes. This scenario repeats many of the issues raised at no. 2 above. Planning consent and building permits will be required, but this may require a rezoning (which as we have seen is a political matter and not subject to appeal before the courts), and an Environmental Impact Assessment. Given the scale of the proposal, there may be a public Inquiry under the Environmental Planning and Assessment Act, should either the council or the Minister so decide, and in the event of the project falling into the designated development category, there is a right for members of the public to demand such an inquiry.

5.19.6 Scenario 6: the domestic garage A householder wishes to construct a single domestic garage for personal use adjacent to his dwelling house. All building work in New South Wales requires permission from a local council, and this includes the full range of development activity from a skyscraper to a garage. There is a range of approvals required in this scenario. The first one relates to building control, which has to do primarily with the structure of the building and its actual erection. This is administered under the Local Government legislation, and is quite distinct from the land use planning basis of the EP&A Act (and the planning instruments made under it), although there may be overlaps. The local plan will contain zoning tables dealing precisely with this type of development.

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Standards for building permits are contained in the Building Code of Australia, a set of federal controls that was adopted in NSW in 1993. For an applicant unhappy with the council’s decision, a right of appeal lies to the Land and Environment Court. This will be dealt with under the Court’s Class 2 jurisdiction, if it is a building matter. If there is an issue regarding the provisions of the local plan then the appropriate class is Class 1. It is likely that this is a case which an assessor would deal with this sitting alone. That decision is made by the Chief Judge in consultation with the Registrar. Building appeals, and objections that certain building control ordinances do not apply, are generally dealt with by a fast track approach. Each party has the opportunity to be heard and a decision is made. This is usually completed within a 4 week period. Enforcement of building control matters is generally the role of the local authority. In practice the authority is likely to go to the Land and Environment Court to seek an order requiring compliance.

5.19.7 Scenario 7: objections to local plan A municipality has prepared a plan for its area which allows for the growth of the urban area. There are objections to the plan. As we have seen, under the 1979 Act, there are three types of planning instrument, at state, regional and local level respectively. Here we are mainly concerned with the local plan, and the extent of revision to that plan necessary to meet the requirements of the local authority in the scenario Much in this scenario would depend on the scale of the proposed rezoning, as certain matters may be sufficiently large to require either the consent authority or the Minister for the Environment to instigate a public inquiry.

5.19.8 Scenario 8: proposed international airport A proposal to construct a major new international airport. Where a matter is of such obvious state wide interest, it seems inevitable that the Minister would exercise his discretion, either by choice or from public pressure/petition, to order a Commission of Inquiry and thereby call-in the ultimate decision to his own department. The minister becomes the consent authority for any activity (in the sense of works carried out by another authority) which requires an environmental impact statement90. Within the State, the appropriate body is the Roads and Traffic Authority which would generally deal with proposals to construct roads and freeways. A Commission’s role on a proposal such as this differs from that of the Land and Environment Court in that it is concerned not with reviewing decisions already made on the merits, but with facilitating an assessment of all relevant facts to enable the Minister to reach a final decision. Nonetheless, it sits in a quasi judicial capacity and is independent of the Government and its departments. It seems that inquiries are now becoming more common in practice. 90

Environmental Planning and Assessment Act 1979, ss.110-115.

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The second aspect results from the likelihood that the project will be federally funded, as the main body in this area in the Federal Airports Corporation. The same 1974 legislation which requires an environmental impact assessment in the event of federal road construction (see Scenario 1) also specifically mentions the construction of airports. Therefore the full rigour of Commonwealth legislation is likely to apply. The other legislation to be mentioned here is the Federal Airports Corporation Act 1986, which also has very detailed regulations on the environmental aspects of any decisions91.

5.20 Commissions of Inquiry 5.20.1 Other institutions We think it appropriate to supplement our study of the Land and Environment Court with an outline of two other institutions which play an important role in environmental planning dispute resolution in the State, albeit from different perspectives. The first is the Commission of Inquiry, which has responsibility for conducting public inquiries in certain cases. Its role is quite distinct from that of the Court, yet its practices mirror those of the Planning Inspectorate in England and Wales. The second is the Environmental Defender’s Office, which provides a useful example of a mode of approaching public interest litigation in the environmental sphere.

5.20.2 Background Both the planning and the heritage legislation in New South Wales provide for public inquiries into a range of environmental and planning matters, development projects and conservation choices. The Environmental Planning and Assessment Act 1979 and the Heritage Act 1977 provide for independent Commissioners to conduct these inquiries and publish their findings or recommendations before the decisions are ultimately made by government. In contrast to the Land and Environment Court, Commissioners of Inquiry are not an adjudicative body. Their role is undertake an independent assessment of a range of expert and community views before the decision is finally taken. The purpose of the Inquiry is to ensure that all interested parties are given the opportunity to express their views. The Inquiry has the advantage of considering the evidence from the Environmental Impact Study (“EIS”) before it commences to hear evidence on its own behalf.

5.20.3 Commissioners of Inquiry Commissioners of Inquiry are appointed under the Environmental Planning and Assessment Act 197992. Commissioners are appointed by the Governor General of the 91

In the case of Botany Municipal Council v Federal Airports Corporation (1992), the High Court held that the 1979 Act did not apply to federal bodies such as the respondent, because it did not constitute “a determining body” under the legislation. The council was challenging works carried on as part of a new third runway at Sydney airport. The matter was therefore governed instead by the Commonwealth legislation, which itself has comprehensive environmental provisions. 92 EPAA, s.18.

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State, normally for up to 7 years, but may be appointed for specific inquiries. At present there are 4 full time Commissioners. The Commissioners are independent of State and local government control, and their relationship is formally at arm’s length in the judicial sense. While they remain responsible to the Minister, under the legislation they are explicitly free from direction by anyone associated with government Commissioners are responsible for the holding of any inquiry which may be ordered by the Minister, and the inquiry provides an independent and public means of assessment of the merits of a proposal likely to have significant environmental impact before the decision is actually taken by the Minister. They exercise a quasi-judicial capacity in this regard. A public inquiry is run by one or more Commissioners. The recommendation of the Commissioners is not legally binding on the Minister, who retains the ultimate decision making power.

5.20.4 Support Staff Commissioners are supported by four full time staff members, who are the Administration Manager, the Town Planner/Policy Officer, the Registrar and Administrative Assistant (who also acts as receptionist and clerical assistant). Temporary staff members (two at present) are also employed to provide the necessary administrative and technical assistance.

5.20.5 Resources and budget The annual budget is in the order of $1.1 million (less than £500,000). All the funding is provided by the NSW State Government. Workload increases tend to be dealt with by the employment of temporary staff.

5.20.6 When a public inquiry may be held An inquiry must be held as of right in some cases; and in other cases is at the Minister’s discretion, often under public pressure. The range of matters is potentially wide, and includes “any matter relating to the administration and implementation of the provisions of this Act” as well as “all or any of the environmental aspects of proposed development the subject of a development application (whether or not it is designated development)”93. Commissioners may also, at the request of local authorities, conduct inquiries into significant developments at the local authority level, or into proposals in a draft local plan proposed by a local authority. Inquiry procedure is statutorily prescribed in outline, and includes power to take evidence on oath and to hold private sessions. However, the Commission is not bound by the rules of evidence and generally has power to regulate its own proceedings94. There is no link between the Commissioners of Inquiry and the Land and Environment Court. The Report which the Commissioner in charge of the Inquiry produces will eventually be publicly released to enable discussion of a project which will, by its very nature, be of regional or statewide significance. Every Inquiry is held in public to provide interested parties with access to all the information and opinions submitted to the Inquiry, and to 93 94

EPAA, s.119(1). EPAA, s.120.

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provide an opportunity to examine and question the submissions made by the other parties.

5.20.7 Powers of the Commissioners In conducting an inquiry the Commissioners have specific powers relating to:  issuing summonses for the production of documents;  the conduct of the hearing itself;  determination of claims by parties for confidentiality of information; and  making findings and recommendations. In addition to the matters placed before them in the course of an Inquiry, they may also on their own initiative or on request seek further information from the parties to the Inquiry or from other sources, but this information must always be placed before all parties to the inquiry. The Commissioners must balance all the information made available to them in the course of the inquiry. Section 90 of the EPAA sets out the matters to be considered when evaluating a development proposal. In all Inquiries the Commissioners will also have regard to the specific terms of reference of the inquiry.

5.20.8 Types of Inquiry Specific projects which have been the subject of public inquiries since 1980 include coal mines, aluminium smelters, tourist resorts, marinas, LPG storage, heliports, shopping centres, sewerage systems, mining and development plans. Ministers have also requested the Commissioners to mediate on disputes which do not fall easily into any of the recognised categories, including a number of mining projects and disputes between central and local government. The main types of case in which an inquiry might be directed are: (a) Terms of reference inquiries: these are subject-related inquiries, rather than inquiries into specific development proposals. They are commissioned by the Minister on his own initiative or on request, and the terms will prescribe the issues upon which the Inquiry must focus95. Interest groups or local councils may approach the Minister and lobby for such an Inquiry. A wide range of subjects have been covered by such Inquiries, such as areas for conservation, the likely impact of industrial development, the environmental impact of dam developments, rezoning, necessary development controls and others; (b) Inquiries into development projects: these apply to specified cases under the legislation and not to all development projects. An inquiry may be ordered by the Minister in the following instances:  where the development is subject to a Section 101 direction but is not “designated development” and the Minister has used his power to sanction the development to

95

EPAA Act, s.110(9).

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be of state or regional significance, then the council or an applicant can request an Inquiry. Objectors will only be heard at the Commissioners’ discretion;  if the development is designated and the Minister has used his section 101 discretion, then the council, the applicant or an objector (one who has made a submission during the exhibition of the proposal) can require the holding of an Inquiry;  where the development is designated the Minister may call an Inquiry at his discretion, where the applicant, the Council and objectors will be heard as of right and the Commissioner can hear other parties at his own discretion. The Minister remains the consent authority in each of these cases. (c) Inquiries into major public works: These generally concern works carried out by public authorities, such as freeway construction or marina proposals. They may be called at public request or on the Minister’s own initiative96. Part 5 of the Act requires the approval of the Minister for Planning for applications from all other government departments where an EIS is required (eg certain forestry operations). (d) SEPP No 34: this refers to a policy in the State Planning Policy relating to major employment generating industrial development. Under this policy the Minister becomes the consent authority for such projects as fall within its compass, and he is likely to use the Commissioners to produce a report before reaching a decision. Examples of such cases include any industrial developments which would involve at least 100 post-construction full time jobs (20 in the case of intensive agriculture) or have a capital investment value of $20 million or more (excluding land). (e) Section 121 disputes: An Inquiry may be requested by councils or by the Minister in the event of a dispute between different tiers of government. Such an inquiry differs from the others, because they are normally conducted on an informal, round table, basis using conciliation and arbitration procedures. (f) Inquiries into local environmental and development plans: this category appears to becoming of increasing importance. These inquiries result from a request from a council for advice. In most cases the Commissioners have the responsibility for organising and publicising the Inquiry, although the ultimate decision remains with the local council. Inquiries into LEPs have a statutory base97, but the environmental plan Inquiries do not.

5.20.9 Requesting an Inquiry and setting it up. Hence the Minister is obliged in some cases to direct that an Inquiry be held, and in other cases the matter is at his discretion. Usually that discretion is exercised at the

96 97

EPAA Act, ss. 110 to 115 EPAA, s.68.

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request of some group, department or local authority. Alternatively he may order it on his own initiative under Section 119(1). A Commission of Inquiry is initiated when the Minister formally advises the Chairman of Commissioners by way of a Direction that an Inquiry is to be held. The Chairman nominates the Commissioner to conduct the particular inquiry, and he is then appointed by the Minister by way of an Instrument of Appointment. The Office of the Commissioners of Inquiry then gives notice of the public inquiry in accordance with Section 120 of the Act. A minimum of four weeks notice is required and a letter is also sent to parties known to be interested. This latter will outline the manner of submission, relevant dates for lodging and for the hearing itself, and covers a number of other procedural matters. In some circumstances a Preliminary Session (mainly for organisational purposes) will be used by the Commissioner to clarify the main issues. Also smaller Inquiries may be dealt with in one session.

5.20.10 Practice and procedure before the Inquiry The Inquiry is not obliged to observe the strict rules of evidence. Conduct of the hearings is designed to ensure that all parties are provided with an equal opportunity to be heard. Court procedure is seen as inappropriate to meet this need. There is a very low level of formality before the Inquiry, and the Commissioner has board discretion as to the type of evidence which will be admitted and the amount of detail required from a particular party. There are no rights of cross-examination, though some questioning of evidence may be allowed at the discretion of the Commissioner. The procedures adopted by the Commissioners include:  conducting inquiries in two sessions;  maximising the use of written submissions;  facilitating access to submissions;  limiting oral repetition of evidence;  minimising the use of over-legalistic procedures;  questioning by the Commissioners and between parties; and  scheduling appearances to suit parties. The use of written submissions, which are publicly displayed at two locations, is an integral part of the procedure. Inquiry submissions are required to be lodged in writing seven to ten days prior to the first session to enable parties to amend their submission in response to any changes in the other parties’ positions. Parties may or may not be legally represented, and they may have specialists address specific technical and scientific evidence. In the case of a project-related inquiry, the EIS will have been on public deposit prior to the Inquiry. Parties generally base their submission on this study, and proponents and opponents will add to the information contained in it. Substantial additional technical

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and scientific reports are often tendered in support of a particular position. At times new information, not previously in the public domain, will be received from parties. The second session of the Inquiry will allow for comments on this material, or alternatively this may be achieved by written submission. Submission of late material, unless especially relevant, is discouraged.

5.20.11 The conduct of the Inquiry The first or primary submission presents the case a person wishes to make before the Inquiry, and should address all issues the party feels to be relevant. This may also suggest alternatives to the development and should make reference to the matters under Section 90 of the Act which the Commissioners must consider when writing their recommendations. Registration of submissions is by lodging the nominated number of copies of a primary submission with any supporting submissions to the Office of the Commissioners by the date advised, and should indicate whether the party wishes to appear. All of these submissions may be inspected at the Office at nominated times. Questions and requests for information arising from the inspections must be directed to the relevant party in writing with a copy to the Registrar. Submissions are not made under oath. Claims for confidentiality will be carefully considered at this stage by the Commissioners, who have a discretion in these matters, but the person claiming confidentiality must show a strong reason to succeed. The Commissioners inform themselves as far as possible about the publicly available material before the inquiry, and may formulate questions and submit them in writing during the first session. They also use the session to challenge conclusions in parties’ submissions which they feel not to be justified by the evidence. The Inquiry procedure rules set out the requirements and the restrictions on questions in the course of an inquiry. Questions are encouraged as a means of clarification of matters before the Inquiry, or to raise additional relevant material. The Commissioner may direct that a question be put in writing, unless it is solely for clarification. The general approach is to require all submissions of more than very minor relevance to be in writing. Cross-examination is very limited in the Inquiry process, as it is seen as threatening and too adversarial in nature for what is essentially an exercise in public participation. The feeling is that unless the parties are of equal abilities it may be counter-productive in terms of helping the Commissioner in assessing the environmental impact. Generally evidence is not taken on oath. The Commissioners do not require the proceedings to be recorded or transcribed and the submissions are the written record of the hearing. The First Session of the Inquiry consists of people either talking to or reading through their submissions. In addition, preliminary matters and applications by parties regarding timing, confidentiality, access to documents and similar issues are heard.

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After the presentation of the primary evidence and clarifications in the first session, each party may lodge a submission in reply which will form the core of the Second Session. They may simply sum up their case, or address any other matter raised in the First Session, including draft conditions of consent. These submissions must be lodged two working days prior to the commencement of the session. Inquiry procedures may often involve weekend or evening sessions to ensure that residents and other concerned citizens get a chance to express their fears. The Commissioners have not yet followed a round table format to accommodate the concerns of residents, except in one particular case.

5.20.12 Technical evidence The Commissioners are all qualified for appointment by reason of their practical experience in the range of occupations specified in the statute as prerequisites for appointment. Consequently, it has not generally been necessary to engage outside specialists to provide independent evidence, although this has occurred occasionally. The Chairman of the Commissioners regards their use as a double-edged sword. While better understanding of detailed issues can emerge, independent specialists are often uncomfortable in providing advice in such uncertain areas. The considerable extra cost of employing well-regarded specialists is another reason for reluctance.

5.20.13 The right to be heard Depending on the type of inquiry, certain parties may appear as of right and others with leave of the Commissioner. Parties are generally advised to lodge a submission in response to the public notice of the Inquiry, and request to appear. Parties appearing with leave of the Commissioner need to establish relevance to the subject of the Inquiry. In some cases the right to appear or to be heard will be challenged by other parties, and the Commissioner retains ultimate discretion. The number of parties involved has ranged from 5 to over 100. The procedures provide for them each to appear personally, unlike a Court. However the Commissioner may request that a group submission is made in order to avoid repetition. Some parties will be legally represented but this is not required and is not considered essential. Currently, legal representatives appear mainly in a managerial role for the proponent, as the majority of issues are regarded as not of specifically legal content. In most cases Inquiries are held in the council chambers where the matter has arisen, and it is felt that this can increase the opportunity for public participation in suburban or rural areas. They may also be heard at the Commission’s own Office if another suitable venue is not available.

5.20.14 Questions and site inspections Questioning from the Commissioner is regarded as an appropriate way of assisting the fact-finding process, as long as this is directed to the environmental aspects rather than a particular critique of individual party positions. Where other than clarification is required, this will be done in written form.

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Site inspections are seen as an important part of assessing the proposed development, and will normally be carried out in the company of the major parties to the Inquiry. However, Commissioners also commonly visit an area prior to an Inquiry so that they can appreciate the context of the proposal and tailor their questions accordingly. The site visit is also used as an opportunity for informal contact between the Commissioners and the parties and, indeed, between the parties themselves. Specialists and representatives of government agencies, where appropriate, will attend the site inspection and be available for informal discussion of the proposals.

5.20.15 Length of an Inquiry The time taken for an Inquiry and for the Commissioner to issue his recommendations is similar to that for local authorities in determining applications, and much depends on the nature and complexity of the matter. The time taken for each Inquiry is usually about five months. A maximum of four weeks notice of the hearing is provided, followed by the hearing itself which can take place over four to six weeks, allowing for two sessions. The report will normally be completed, presented and made public within eight to ten weeks of the conclusion of the hearing, although delays can obviously occur. These are usually the result of late submission of the technical and scientific reports and outstanding information.

5.20.16 Relationship with other bodies The role of the Commissioners is quite different from that of the Land and Environment Court, which reviews a decision after it has been made on the merits in accordance with the law or alternatively examines the legal validity of actions which fall within its specific jurisdiction. The Commissioners do not determine issues of law although they will need to apply the relevant law to matters in dispute before an inquiry or interpret legal points relevant to the issues arising before an inquiry. They will remain at arms length from the Minister and his department throughout the process. This naturally flows from the nature of their statutory duties and from the independence of the Commissioners. A similar relationship must exist with the elected representatives and the officers of a local authority, and the Commissioners will not retain a relationship with the council following publication of the report.

5.20.17 Publication of the report The report of a Commission of Inquiry is almost always presented to the Minister or relevant local authority by the Commissioner involved. This allows the major aspects of the development to be explained directly to the decision maker. It allows the Minister or authority to put the appropriate questions to the Commissioner before they go ahead to obtain any other reports which are needed. If a proposal is supported by the Commissioner’s report it is likely that conditions of consent will be recommended in the report. The Commissioners normally present the report to the Minister within 60 days of completing the formal sessions of the Inquiry, although a longer period may be required for particularly contentious or complex proposals or at times of heavy workload.

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The Report is publicly released by the Commissioner following presentation to the Minister. In most cases it will be prepared and made public within about eight to ten weeks of the completion of the hearing sessions. Once the report has been presented the Commissioner and his office have no further jurisdiction in the matter and will not enter into debate concerning the report or, for example, attend meetings on the subject matter.

5.21 The Environmental Defender’s Office 5.21.1 Background The Environmental Defender’s Office of New South Wales (“EDO”) is the largest and most high profile of a number of EDO’s scattered throughout Australia. It is a non-profit community legal centre which assists individuals and pressure groups working to protect the natural and built environment. The work of the Sydney office falls into three distinct categories; 

Caseload: this is about 40% of its work. The office becomes directly involved in approximately 12 cases per year depending on available funding. The decision to become directly involved is taken only when it is felt that the case is of particular importance, either in terms of the location of the development or the precedent which it could set if it went unchallenged. The majority of these legal challenges would be before the Land and Environment Court, although it also gets involved in matters before the federal courts of Australia where it feels the issue is of sufficient importance. The office has informal links with other EDO’s throughout Australia, and may co-operate on issues, or even on cases of national significance. The EDO tends to use outside counsel for these cases, and prefers not to use its own lawyers on a case (there are presently four). It has been successful in persuading high level counsel to do these cases on a pro bono basis. The office also operates a helpline to deal with queries on planning and environmental matters, and has introduced a toll-free scheme which allows use of their services throughout the entire state.



Policy work and education: Each of these heads constitutes about 25% of the caseload. It is the area where the Office starts most closely to resemble a legal guardian of the environment. The Office does a great deal of work in cooperation with environmental lobby groups, and sees its role as promoting the position of the environment before central and local government. It takes an active role in the law reform, and provides advice on proposed legislation and on various environmental and planning law problems to a range of pressure groups and other conservation groups involved in environmental issues.



Other work: this constitutes about 10% of the EDO’s work. The Office operates a community education programme where it attempts to foster public knowledge of the system, to allow members of the public to assert their rights, such as these exist, to participate in the system.

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5.21.2 Activities The office produces a wide range of publications including two quarterly newsletters which contain updates on public interest environmental law. In addition, the EDO produces the Environmental Law Fact Sheet Kit, comprising 42 fact sheets about the most important environmental law issues in the State. In this way, the office seeks to make the public more aware of how the environmental protection system works. There is an impressive range of literature prepared expressly for public consumption, and we encountered no other jurisdiction with a comparable facility. The office also runs workshops in regional centres to promote public participation, and holds an annual conference on a topical legal issue for debate. As the demand for its services continues to grow, so it finds itself under increasing financial pressures. As a non-profit organisation it depends to some extent on voluntary contributions to top up the funding it receives from the federal and State Governments. It will also requires a nominal contribution from those whose cases it takes on, more as a mark of the party’s bona fides than for the sum involved. Legal aid is available for environmental matters through the mainstream system, and if an individual can meet the strict financial criteria set down, then a solicitor is available from the legal aid panel. Unfortunately, environmental specialists are rarely on that panel and, given increased specialisation in this area, it is rare that legal aid is of assistance.

5.21.3 Funding The EDO receives approximately $100,000 per annum from the federal government and a further $90,000 from the State. Other funding includes a grant of about $250,000 over a three year period from a Solicitors’ Trust Fund account, the largest single tranche of funding it has received. It enjoys the assistance of a number of volunteers who help out on a pro bono basis. The work of the office also receives strong moral support from some of the judges of the Land and Environment Court, and both Chief Justice Pearlman and Justice Stein have praised the work of the office as filling a vital role in environmental litigation. This has also helped the Office’s media profile, and it sees this as vital in raising the profile of environmental issues in the State.

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6 Queensland 6.1 Introduction Queensland also has a specialist environment court, modelled to some extent on the New South Wales model, but with significant differences in approach. The State has also recently enacted ambitious new legislation in an attempt to end the complexity and fragmentation of its planning and environmental protection legislation, though it is still too early to assess what impact this may have on the operation of the Court. Queensland is, after all, a strongly conservative and pro-development State, and the commitment of the new legislation to sustainable development and integration of decision-making may not prove easy to implement. The new legislation, the Integrated Planning Act 1997, was brought into force in 1998, but its complete implementation will take many years.

6.2 Background to the creation of a specialist court and the role of the Planning and Environment Court The Local Government (Planning and Environment Court) Act 1990 continued in Queensland a specialised planning court, but changed its name from the Local Government Court to the Planning and Environment Court. That Act formed the starting point for a series of new environmental legislation in the State. The Court, like its predecessor, heard and determined appeals from town planning decisions of local authorities concerning rezoning and subdivision under the Local Government (Planning and Environment) Act1. However its jurisdiction was extended by the subsequent legislation, which included:

1



The Contaminated Land Act 1991;



The Nature Conservation Act 1992;



The Environment Protection Act 1994;



The Coastal Protection and Management Act 1995; and

The State also maintains a Land Court, which is an independent body comparable to the Lands Tribunal in England and Wales, for which functions are conferred by the Land Act 1962. The Court has jurisdiction under 32 Acts of Parliament. The majority of matters heard by the Court are appeals against determinations by the Department of Natural Resources in matters relating to the Valuation of Land Act 1944, Land Act 1994 and Water Resources Act 1989 and claims for compensation following resumption of land. Appeals lie in most matters from decisions of the Court to the Land Appeal Court. The Land Appeal Court is constituted by a Supreme Court Judge and two Members of the Land Court (other than the Member whose decision is appealed against).

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The Integrated Planning Act 1997.

The Bill was originally introduced as the Planning and Development Bill but, following a change of government, the title was amended to include environment and the substance of the Bill was changed to include details on environmental assessment. It was prompted by the Trenorden and Hayes report of 1990, Combined Jurisdiction for Development Appeals in the States and Territories2, which had been commissioned by the Commonwealth Government and had advocated the extension of the New South Wales system to the remainder of Australia. Not all the Report’s recommendations were adopted in Queensland, so that its model of an Environment Court is different from those of New Zealand, South Australia and New South Wales. The Court itself is something of a hybrid. Like the South Australia and New Zealand courts, it was established at District Court level, but it was given special powers, including enhanced enforcement powers. It has the power to make orders and declarations which were previously the sole prerogative of the Supreme Court. It has the final say on the merits of planning and environmental appeals, and it has liberal standing rules. The Court is serviced by District Court judges who hold a commission to hear planning and environment matters. However, all but one of them continue also to hear the usual run of civil and criminal cases. The administration of the Court is wholly integrated with the regular District Court. Because of the high rate of settlement of disputes by negotiation, there is a small caseload, and no need has arisen for a separate administration. For these reasons our report on Queensland is structured a little differently from the other jurisdictions which we have examined. The practice and procedure of the Court, as with its administration, are largely the same as for the District Court. There are few particular distinguishing features apart from the fact that the Court has (with effect from July 1, 1999) its own rules of court, and we have not therefore examined these issues in detail. Instead, we outline the role and functions of the Court, and examine the implications for it of the new Integrated Planning Act 1997.

6.3 The Integrated Planning Act 1997 This Act effects a substantial reform of development control and environmental protection in the State. It came fully into force on March 30, 1998, and there will inevitably be a lengthy transitional period as its provisions come to be implemented. This is in part because existing plans and policies remain in effect until superseded by new planning scheme policies made under the Act. When a development permit is necessary, it must be processed through a system known as the “integrated development assessment system”, or IDAS. Other planning and environmental legislation will be rolled over to the IDAS process. Like the New Zealand legislation, the Act pronounces a broad purpose, which is “to seek to achieve ecological sustainability by— 2

Federal Department of Industry, Technology and Commerce (Commonwealth Government Printer, 1990)

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(a) co-ordinating and integrating planning at the local, regional and State levels; and (b) managing the process by which development occurs; and (c) managing the effects of development on the environment (including managing the use of premises)3. A duty is imposed upon all entities under the Act, including the Court, to advance the Act’s purpose, and to do so by, inter alia, ensuring that decision-making processes take account of short and long-term environmental effects of development, apply the precautionary principle and seek to provide for equity between present and future generations4. Enactment of the 1997 Act was preceded by a debate about the future of the Court. One option under consideration was whether it should become a tribunal, but that was eventually rejected in favour of retaining the existing structure. Significant changes are made, however, to the rights of parties to matters before the Court, and its jurisdiction was extended to include a civil enforcement jurisdiction. In addition, a restriction was introduced to make appeals to the Supreme Court conditional on obtaining leave and the right to seek judicial review was removed. The Rules of Court5 have been significantly revised, and augmented by the Uniform Civil Procedure Rules.

6.4 Constitution and establishment 6.4.1 Judges and Commissioners The Planning and Environment Court consists only of those judges of the District Court of Queensland who have been granted a commission to hear planning and environment matters. There are presently nine such judges, of whom five are based in Brisbane. The Court also sits on circuit and regularly hears cases in the larger towns, notably Cairns, Townsville and Southport. At present, one judge (Judge Thomas Quirk) is regarded as the Court’s principal planning and environment expert, and is involved in most of the Court’s major hearings. For example, of the 77 sitting weeks required to meet the caseload of the entire Court for 1997, he contributed 40 weeks. A second judge will probably spend about 15 of his sitting weeks on planning work, and the other judges pick up the remainder of the court’s caseload as the need arises.

6.4.2 Appointment of Judges The background of the judges awarded a warrant to sit in the Planning and Environment Court is much the same as for any District Court judges. They are usually from private practice and most likely to have practised at the Bar. The legal profession in Queensland is split between barristers and solicitors along traditional British lines. Appointments to the Court are in the hands of the Executive State Government, and there is no Judicial Appointments Commission, nor is the appointment process open to public scrutiny. 3

IPA, s.1.2.1. IPA, s.1.2.3. 5 Planning and Environment Court Rules 1999 (Subordinate Legislation 1999 No 116). 4

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These are not, however, political appointments, and political independence is expected of all judicial appointees. Planning and environment judges may come from the planning Bar, although this is not necessarily the case. That Bar is extremely small, comprising no more than around 15 senior barristers, including five silks who regularly practice in the jurisdiction, and hence the scope for appointments from that pool is rather limited. However from the cross section of users of the Court to whom we spoke there was much praise for the calibre of the judges on the Court, and the Court’s efficiency of dispatch of business was largely attributed to the personnel on the bench. Judges are paid standard District Court salaries, in the region of $140,000 (about stg £65,000). This figure is probably not at a level sufficient to tempt the leading barristers to halve, or possibly quarter, their earnings for the honour of a position on the bench. The status of the District Court is probably higher than an English County Court, but below the English High Court. The Planning and Environment jurisdiction is perceived as being somewhat out of the mainstream. Most of the senior barristers specialising in the area reserve part of their practice for more general areas of law. Too narrow a specialisation in planning work is seen as too restrictive for advancement in a judicial career. As is usual for judicial office, the judges have tenure until retiring age, and there are no special conditions of appointment. Although there is a post of Senior Judge for the District Court as a whole, the Planning and Environment Court does not have a Principal Judge, unlike its equivalents in New Zealand and New South Wales. This is probably due to the fact that the caseload involved does not merit the position. The caseload of the planning and environment judges is very varied. However, most of the matters coming to the Court so far have been in planning, and environmental cases have been rare. The judges found it difficult to provide a reliable estimate of the numbers of cases reserved and awaiting decision. Similarly for writing up time, there were too many variables to produce hard figures, although as we shall see below the case processing times of the Court remain impressive. There are no assessors or commissioners sitting in the Planning and Environment Court, although a recent unimplemented proposal to extend the Court (see further below) included a proposal for expert assessors to sit alongside judges.

6.4.3

Relationship with external bodies

Queensland does not have any office similar to that of the New Zealand Commissioner for the Environment. There are no special relationships between the court and other bodies in the area. There is no equivalent of the UK call in power in the Queensland system. However, this is a State in which tourism is an important contributor to the economy, and where there has always been a strong pro-growth mentality. This has resulted in strong powers being reserved to the State Government. For example, under the previous legislation the Minister had a special role in rezoning matters. Rezoning was probably the most sensitive planning issue in Queensland. The Minister had the power to step in to override the decision of a local government in relation to zoning. Usually the proposed rezoning would be from amenity or residential to commercial or

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industrial, with important repercussions for the economy of the local area, not to mention the value of the site involved. The procedure was unusual. The developer was able to apply direct to the Minister for consent for the rezoning application, and thereby remove it from the local processes (although the Minister had to provide for adequate consultation before taking his decision). Under the Integrated Planning Act, the zoning system has been removed. There is a dramatic move away from a prescription-based planning system, and no development is now proscribed. However, the pro-growth culture is still reflected in a “fast track” procedure for largescale projects This arises in relation to any large-scale private project which is in the view of the Minister of particular significance to an area. This may be permitted to proceed unhindered by planning and environmental appeals. On occasion whole town centres have been set aside for redevelopment though this process. It was started by the Sanctuary Cove Development Act and was eventually formalised into the Integrated Resort Development Act 1987 to provide a uniform procedure. Environmental groups challenged this process by judicial review before the Supreme Court, but although the Court has acknowledged that important issues of law were involved in such a decision, the actions have failed. In the event, comparatively few projects proceeded under the “fast track” process because it often took longer than the normal approval processes.

6.4.4

Funding and resources

The Court service is paid for entirely from State revenues. Because it is administered integrally with the District Court, no separate figures or estimates were available of its running costs. The Planning and Environment Court does not have its own premises, but uses the premises of the District Court in almost all cases. There are no separate special agreements governing this arrangement. The Court also uses all the facilities of the District Court, including its Registry staff and other administrative support. In the Brisbane Registry, the largest centre for planning matters in the state, only one member of staff, the Court listings clerk, works exclusively on Planning and Environment Court work. Each of the judges has a research assistant.

6.4.5 Case management There is a simple case allocation system. There is a limited number of judges and no assessors to combine with judges, so the listing clerk compiles the list with reference to availability of the planning judges and courtrooms, following consultation with the judges involved. There is no question of choosing judges for their knowledge of a particularly technical area of the law. Given the small scale of the operation, there is no special use made of IT for this purpose. The Court administration in Queensland is, however, well advanced in its use of IT, and the District Court is the most recent to be added to the system. Some decisions of the Court are posted on the State Government’s IPA website. All of the

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judges have email. The Court also has sophisticated stenographic facilities and is usually able to provide the parties with an electronic transcript of the day’s proceedings by the same evening.

6.5 Formal powers of the Court 6.5.1 General powers The 1990 Act transferred the general powers and duties of the old Local Government Court to the Planning and Environment Court. The Court was formerly empowered by the Local Government (Planning and Environment) Act to deal with appeals relating to subdivision, rezoning, combined subdivision and rezoning applications, amendments relating to planning schemes, development consent, alleged breaches of planning schemes and the revocation of existing use rights, and to make certain declarations. With the declarations there is a range of subsequent orders which can be made (including an injunction). The Court also had jurisdiction under other legislation, including the Beach Protection Act 1968; the Building Act 1975; the Building Units and Group Titles Act 1980; the Noise Abatement Act 1978; the Contaminated Land Act 1991; the Heritage Act 1992; the Transport Infrastructure Act 1994; and the Environment Protection Act 1994. Those measures have been continued by the Integrated Planning Act 1997, and the Court’s jurisdiction and powers are now conferred and defined by Chapter 4 of that Act. Rights of appeal to the Court include: (1) an applicant’s appeal against refusal or the terms of a development consent6; (2) a submitter (ie, a person who has made submissions on an another’s application) may appeal against the giving of development approval including conditions imposed on it7; (3) an advice agency may appeal if the application involves impact assessment8; (4) appeals against enforcement notices9 or for stay of their effect10; (5) appeals against compensation awards11; (6) appeals from tribunals’ decisions12; (7) appeals and applications under other legislation, including the Environmental Protection Act 1994, the Transport Infrastructure Act 1994 and the Heritage Act 1992.

6

IPA, s.4.1.27 IPA, s.4.1.28. 8 IPA, s.4.1.29. 9 IPA, s.4.1.31. 10 IPA, s.4.1.32. 11 IPA, s.4.1.34. 12 IPA, s.4.1.37. 7

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6.5.2 The declaratory jurisdiction The Court has a special power to issue declaratory judgements which has been expanded by the 1997 Act13. The Act provides that any person14 may bring proceedings in the court for a declaration about: (a) (b) (c) (d) (e)

a matter done, to be done or that should have been done under this Act; the construction of this Act and planning instruments under this Act; and the lawfulness of land use or development; and an infrastructure charge; and a failure by an assessment manager to give an acknowledgement notice.

The Court may make ancillary orders but may not cancel a development approval unless satisfied that it was obtained by fraud of the applicant15.

6.5.3

The injunctive jurisdiction

The Court could formerly grant relief independently of proceedings for a declaration to order the defendant to cease any activity, or to order compliance; or to specify that noncompliance constituted a public nuisance.

6.5.4 Interlocutory injunctions Interlocutory injunctions are authorised by section 2.25 and may be made pending the determination of a section 2.24 application. They are intended to protect the status quo. The requirements are the same as for any District Court injunction, and do not reflect any particular requirement of environmental public interest litigation. The Court will need to be satisfied that there is a serious issue of law at stake; that damages would not be adequate compensation; and that the balance of convenience favours the granting of an injunction. Both the declaratory and the injunctive power are discretionary remedies to be exercised by the Court. We encountered some academic criticism to the effect that the Court has used this discretion to limit, in practice, the very generous standing rules in planning and environmental matters which is granted by the legislation, and to refuse the remedy sought by that other means. Some commentators are concerned that this runs contrary to the ethos of public participation engendered by the standing rules. In relation to planning appeals the Court’s jurisdiction is de novo. The Court stands in the shoes of the local planning authority and substitutes its own decision for theirs. It also exercises a first instance jurisdiction in relation to declaratory orders and injunctions.

13

IPA, s.4.1.21. This includes proceedings brought on behalf of an unincorporated body provided its controlling committee consents: s.4.1.21(3). 15 IPA, s.1.4.22. If the owner of the land was not party to the fraud, the court must also make a compensation order. 14

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6.5.5 Environment appeals Although the Court has the status of appeal court under the Environmental Protection Act, 1994 very few appeals have yet reached the Court under this jurisdiction. The Environment Agency, which is charged with the administration of that legislation, has adopted a primarily consensus approach and rarely resorts to litigation. Hence, the Court is still primarily a planning jurisdiction, to which an environmental capacity has been added.

6.5.6

Common law, criminal jurisdiction, inherent jurisdiction

The Planning and Environment Court does not exercise any common law jurisdiction. A party wishing to obtain damages must institute proceedings in the civil courts, although the Court does have a statutory power to award compensation for injurious affection. We encountered no pressure for an extension of the Court’s jurisdiction in this respect. Nor does the Court have any criminal jurisdiction. All criminal matters are handled through the normal court structure. Given that all the Court’s Judges also sit in the District Court, it is not difficult for the District Court to make use of this specialist expertise in planning and environmental matters should the case demand it. Offences may also be prosecuted in the Magistrates’ court. The jurisdiction of the Court under the Integrated Planning Act is absolute. Every determination of the Court is final and conclusive and is not to be appealed against on the merits in any court. Appeals are allowed only on points of law, and go to the Court of Appeal. Jurisdiction does not extend to judicial review. Under the Judicial Review Act of 1991, such applications are the preserve of the Supreme Court of Queensland. However, the Integrated Planning Act took away altogether the right to seek judicial review of planning decisions in favour of the Planning and Environment Court’s broader statutory jurisdiction, and this was an important change in the jurisdiction of the Supreme Court.

6.6 The substantive framework for decisions 6.6.1 The objectives of the legislation As we have seen, the substantive framework for decisions is presently undergoing reform as a result of the Integrated Planning Act 1997. The instruments previously in force were made under the Local Government (Planning and Environment) Act, which specified the following objectives16: “(a) to provide a code by which a local government or the minister may undertake the planning of an area in order to facilitate orderly development and the protection of the environment; and

16

LG(P&E)A, s. 1.3.

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(b) to provide an adequate framework for a person to apply for approval in respect of a development proposal and to provide for adequate appeal rights in respect thereof.” This has been the framework within which the Court has operated. Within it, the Court has set its own jurisdictional parameters, and established its own approaches. It has taken the line, for example, that planning applications should always be considered on their merits. It has also held that it is not the function of the Court to determine whether the subject site is the best for the proposed use or to enquire whether there might be better sites available.

6.6.2 The policy framework The formal policy framework for planning in the State was established by the 1990 Act and remains largely intact under the new Act, though there are some significant changes. There are two levels of planning policy: state planning policy and local planning policy. Under the Integrated Planning Act, a state planning policy is, simply, “an instrument, made by the Minister under this part [of the Act], about matters of State interest”17. It is made as a statutory instrument and has the force of law. The Minister is empowered to protect State interests by making directions to local governments to make or review their planning schemes18. Local authorities make planning scheme policies, in general conformity with any State planning policy. There are three prescribed stages in their preparation: proposal stage; the consultation stage and the adoption stage19. These too have the force of law. They may not prohibit development on, or the use, of premises, but may restrict a use of premises by applying to the use a code identified in the planning scheme20. However, planning policy in Queensland, at either level, has nothing like the significance of Government policy or development plan policy in English planning law. There is only a handful of policies, and they are limited in subject matter and rarely have relevance to the determination of applications.

6.6.3 The integrated assessment process Applications for development approval must now go through an integrated assessment process, prescribed by Chapter 3 of the 1997 Act. This involves the following stages: (1) the application stage: the Act specifies the nature and contents of a planning application; (2) the information and referral stage: this refers to the consultation processes through which the application must pass; 17

IPA, s.2.4.1. IPA, s. 2.3.2. 19 IPA, s.2.1.19, and Sched 3, parts 1, 2 and 3. 20 IPA, s. 2.1.23. 18

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(3) the notification stage: this stage applies only if an application requires impact assessment, and its purpose is to provide an opportunity to make submissions and objections which must be taken into account before an application is determined21; (4) the decision stage. The applicant may seek redetermination if he objects to any conditions that are imposed. The Minister has a power, at any time before an application is determined, provided the development involves a State interest22, to direct the attachment of certain conditions to the development approval, or restrict the granting of approval. He also has a call-in power23. Not all development requires assessment, and not all stages of assessment apply to all applications.

6.6.4 Precedent and law reporting Since the Court operates at District Court level, it is bound by the precedent of the Court of Appeal of Queensland, and ultimately by the High Court of Australia. It is not bound by its own decisions, though these will be persuasive. There is a high degree of consistency that has been built up over time, and is a product of the small-scale nature of the system and the cohesiveness of a Court which has relatively few members and relatively few lawyers appearing before it. Decisions are reported in the Queensland Planning and Environment Law Reports and in the Local Government Reports of Queensland, both of which issue quarterly and contain all the major decisions of the Court.

6.7 Practice and procedure 6.7.1 How jurisdiction is triggered Jurisdiction is triggered by lodging written notice of appeal in the prescribed form with the Registrar of the Court, stating the grounds of appeal and complying with the rules of court (though this last requirement may be waived)24. Notice must be given by the appellant to other parties25, and the Minister is entitled to be represented if satisfied that the appeal involves a State interest26. The Notice of Appeal should specify: (a) whether the whole or part only of the decision is being appealed against; (b) the grounds of the appeal and the facts and circumstances to be relied upon; (c) what judgement, order or other direction or decision the appellant seeks. The next step is when the appeal is “entered” on the appellant’s behalf. This triggers the process for setting the matter down for hearing. This was an important step under the pre-IPA regime, because all appeals initiated by an objector had to be determined within 21

IPA, s. 3.4.1. IPA, s. 3.6.1. 23 IPA, s. 3.6.6. 24 IPA, s. 4.1.39. 25 IPA, ss.4.1.41 and 42. 26 IPA, s. 4.1.46. 22

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2 months of the Entry of Appeal27. The Court strove to meet this deadline even in cases involving major hearings. After an appeal has been set down for hearing, the appellant will commonly seek an Application for Directions, requesting a number of items, such as identifying the issues, discovery and inspection, exchange of expert reports, out of court conferences, any other incidental matters and the setting down date for a full hearing. The Court’s Rules28 allow for applications to the Court for an order or directions, including orders as to disclosure by inspection of documents. Such an application will often result from the failure to be sufficiently clear in the Notice of Appeal. Because there are no formal pleadings in the Court, the part played by this procedure can be potentially more significant than in the Supreme or the District Court, because it effectively allows further issues to be raised without last minute amendments or adjournments. Reports of experts made before the application to the local authority and its decision are usually discoverable, whereas those obtained for the purpose of the appeal are usually not so. There is a separate procedure for third party discovery. The Court Rules29 also provide for interrogatories to be delivered, but they are not usual in these appeals. The only other documents in the formal sense are minor items such as notices of appearances. Following the hearing of the Application for Directions, the court will issue an Order detailing the steps which the parties should take prior to the full hearing in relation to exchange of reports, and a possible compulsory pre hearing conference. A date for that full hearing will also be included. There may be more than one Application for Directions, depending on the complexity and length of the case, and the parties may return to seek interlocutory orders a number of times before the full hearing.

6.7.2 Amending pleadings/joining objectors The Court has a discretion to allow amendments to the pleadings upon such terms to costs as it thinks fit. If the amendment is likely to require an adjournment then the party applying will be expected to pay those costs, but if the amendment actually eliminates an issue from the appeal the Court may make an order to dispense with costs. Both applicants and qualified objectors (“submitters”) may appeal. Submitters may seek to join in an appeal as respondents by election in applicant appeals. In Lewiac Pty Ltd v Errenmore Pty Ltd, the Court held that, generally, it should use these powers to avoid there being a multiplicity of proceedings where substantially the same issues were involved. In such cases the Court will order that two or more applications be heard together. The same principles apply to interrelated appeals.

27

Rule 18(4)b of the former Local Government Court Rules. Planning and Environment Court Rules 1999, r.20. 29 Ibid, r.20(2)(d). 28

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6.7.3 Written representations The Uniform Civil Procedure Rules permit the determination of matters on the basis of written representations, but only in certain narrowly prescribed cases. It is not therefore a general alternative to oral proceedings.

6.7.4 Applications for directions We have outlined above the role that the Application for Directions plays in the Court’s interlocutory proceedings, which we believe provides an efficient means for preliminary review of the issues. It provides the Court with the means of dealing with preliminary points of law, in addition to putting interlocutory steps on a timetable and identifying the disputed issues. The Rules formerly placed a time limit of two months within which an objectors appeal had to be heard and determined by the Court after it has been entered for hearing, but that requirement was dropped in the new Rules. The Court encourages the efficient resolution of many matters. The Court is anxious to maintain its reputation for speedy disposal and is reluctant to allow its present disposal rates to slip. At the time of the application for directions, issues such as the need to re-advertise an application will be decided, and the Court will require, for example, that all public notice requirements are fully met before it will hear an appeal. It is usual for the date of the full hearing to be set down at the hearing of the application for directions, and the parties will be required at this stage to furnish their best estimate of the possible length of the hearing. The Court may require, on an application for directions, that the parties to the appeal confer out of court to consider resolving, by agreement, any of the issues arising in the appeal. The identification of the disputed issues in all Planning and Environment Court matters has become an important step in the preparation for and conduct of the appeal hearing. It is a rule of the Court that once the issues have been identified, those issues limit the evidence to be given on the hearing of that appeal. There are obvious advantages to such clear identification of the issues before the hearing, allowing the matter to be expedited. If further matters arise after the application for directions has been made, then the Court may allow amendment to the disputed issues listed in the application for directions. An appeal book may be submitted in the form of a file which is indexed, paginated and arranged in chronological order.

6.7.5 De novo hearing The hearing is a de novo hearing and all the evidence on the appeal is produced just as it would be at local authority level. It should be noted however that the Court requires the applicant to carry the burden of proof, whether in an applicant appeal or in a submitter appeal. The civil standard of proof applies.

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6.7.6 Expert evidence The Court operates on the basis of an adversarial system, with the usual process of evidence in chief and cross-examination. From time to time the Judge will intervene to ask questions of expert witnesses, but there seems little interest in adopting a more inquisitorial approach. The Court has the power to call its own expert witnesses but does not appear ever to have done this. It does not have its own expert assessors to advise on technical evidence. A great deal of the evidence before the Court is expert evidence, and for this it is customary for evidence in chief to be given in written form. The parties will exchange reports by their respective experts before the hearing by the date ordered by the Court. On the substantive hearing of the appeal, expert evidence is given under oath. Advance notice is also encouraged, but not required, of statements from other, non-expert, witnesses. The requirements relating to the admission of evidence before the Court are prescribed by the Planning and Environment Court Rules, as augmented by the Uniform Civil Procedure Rules, which now apply to all Supreme, District and Magistrates’ Courts. However in practice the Court is more flexible than the normal civil courts and rules of evidence such as hearsay are not applied. The Court’s own Rules provide30 that the Court may disapply the rules of evidence to proving a fact, if the court considers that strict proof may cause unnecessary or unreasonable expense, delay or inconvenience, or the fact is not seriously in dispute.

6.7.7

Legal representation before the Court

In most cases the parties are legally represented. It is not unknown to have lay litigants, or for parties to be represented by town planners or other professionals, but we detected a general impression that these parties were rarely successful. Business in the Court is dominated by a small group of lawyers. Few lawyers without that specialist background are prepared to deal with substantial matters in the Planning and Environment Court. The Court has a reputation for being helpful to those who are not represented, but it must also be careful of procedural fairness issues and remember the adversarial nature of the proceedings. In short, a party who is serious about its chances of success will engage a planning law specialist to cope with the technical law and policy in this area.

6.7.8 Locus standi The locus standi rules in Queensland are possibly the most liberal in Australia. There are third party rights of appeal against local planning decisions, and there is also a general right of access to the Court. 

30

Submitters to planning applications made to a local authority have the right to appeal or to be joined as respondents by election in an applicant appeal.

Planning and Environment Court Rules 1999, r.22.

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The general right of access to the Court is conferred by section 2.24 of the Act, which is based upon section 123 of the New South Wales legislation. Like the Planning and Environment Court of New South Wales, the Queensland Court has resisted attempts to narrow the statutory formula that “any person may bring proceedings”, and has rejected the argument that applicants should need to demonstrate a special private right or interest in the proceedings. There is, however, a gap in the scheme of access to the Court. There are no comparable third party rights under the Environmental Protection legislation. There is provision in the legislation for such rights, but those sections been delayed in their implementation due to sectoral pressures which insist that this would adversely affect the development industry. However, in practice the views of third parties are given as part of the evidence of the Environment Agency, which will call as witnesses local residents adversely affected by breaches of environmental licences.

6.7.9

The role of the judge

The judicial role is clearly one of adjudication in an adversarial context. Although judges will often have experience and expertise in planning and environmental matters, it is not their function to use that as a basis of suggesting or imposing an alternative solution on the parties.

6.7.10 Decisions As a matter of practice the Court provides written decisions including a full statement of its reasons. Decisions are on occasion given ex tempore.

6.7.11 Appeals from the Planning and Environment Court A right of appeal lies to the Court of Appeal31, and is limited to error of law or excess of jurisdiction.

6.7.12 Costs, undertakings and legal aid Parties are normally required to bear their own costs. However, the Court has power32 to make an award of costs in circumstances where it feels this is appropriate. Applications are frequently made for costs against unsuccessful applicants. However, costs awards are in practice limited to cases of “frivolous or vexatious” claims, and are therefore relatively rare. The Court may also require security for costs33. The Court does not share the power of the New South Wales Land and Environment Court34 to dispense with the provision of undertakings for damages in applications for injunctions in public interest cases.

31

LGPEA, s.7.4(34). LGPEA, s. 6.1. 33 But under its assumed inherent jurisdiction rather than s.7.6 of the Act: Fitzgerald v Logan City Council (1992). 34 See the Oshlack case, discussed at p. 190above. 32

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The level of costs to the parties before the Planning and Environment Court seems to be closer to standard Supreme Court costs than to District Court costs. This follows from the specialised nature of the jurisdiction, and by the very large sums at stake in many of the cases. Estimates given to us of typical costs range from $3,000 to $4,000 per day for a QC, and from $1,200 to $2,000 for an experienced junior barrister. Solicitors’ costs expenses on expert evidence could push the per diem cost above $8,000. For a five-day hearing, these costs might level out to about $40,000 (for legal fees only), but the figures are indicative only. In theory it is possible for individuals to obtain legal aid for environmental matters, but in reality funds are tightly rationed. There are two small Environmental Defenders Offices operating in Queensland, but both have very limited budgets which prevent them from taking cases before the Court.

6.7.13 Alternative Dispute Resolution Alternative Dispute Resolution has not developed in Queensland at the same pace as in the rest of Australia, although that is now beginning to change. At Supreme Court level there are presently some pilot projects experimenting with the use of ADR. There is also a history of what is called community mediation, which lies outside the formal Court structure. Negotiation commonly takes place between the parties before trial, with an extremely high success rate. The Court does not become involved in this process. Although it has power to order a mediation, this has rarely been used. The Planning Bar does not favour Court-ordered mediation, which may be as expensive to the parties as a formal hearing of the Court, and there is a general perception shared by the Bar and the Judges that the high success rate of private negotiation means that there is no role for a formal mediation process. However, under the rules of the Court, the parties are required to organise a “without prejudice” conference for the purpose of giving consideration to the resolution by agreement of any issue involved in the appeal. Parties reported to us a number of problems with such conferences in the past, especially with regard to the capacity of the local government representatives at the meeting to formally agree a solution.

6.7.14 Special rules No special procedural rules apply to the State Government or its agencies. However, a planning scheme made under the Act does not bind the Crown. Accordingly, land owned by the state government is not subject to the Planning and Environment Act or any planning scheme made or continued in force thereunder. Neither is the Commonwealth government so bound. The fast track procedures that we touched upon above also remove certain large-scale projects, such as the building of new holiday resorts, from the planning system altogether, and thereby beyond the reach of the Court. These are projects which involve private property as opposed to Crown land.

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6.8 Volume of business 6.8.1 Overall caseflow As we have seen, the work of the Planning and Environment Court is closely integrated with that of the District Court. For this reason it has proved difficult to obtain detailed data about caseflow. The headline figures are that a total of 496 matters were lodged in 1995, and a total of 423 matters were lodged in 1996. For the final six months of 1994, 111 matters were lodged. The Court was unable to furnish us with a breakdown by parties or issues; nor figures for appeals from the Planning and Environment Court to the Court of Appeal.

6.8.2 Speed of decision-making Nor is information available relating to the time taken from the making of the application to the issuing of the final decision. Our best estimates are:  From notice of appeal to entry of appeal: approximately four weeks. The actual time is at the discretion of the parties, unless they delay too long;  From entry of appeal/application for directions to hearing: approximately six weeks;  From hearing to issuing of decision - depending on the complexity of the appeal, from immediate (ex tempore judgement) to two months. The Court has an efficient callover system. A callover is held on each pending case every month. The presiding Judge will inquire as to the progress of the appeal. If negotiations are proceeding satisfactorily, the matter will be relisted for the next callover. If not, the appeal will be set down for hearing.

6.9 Evaluation of performance The 1990 Act was relatively limited in its effects. It changed the name of the existing Local Government Court and gave it some additional enforcement powers. Despite its new title, the Court was still perceived in the State as primarily a planning court. It was only with the 1990 change of government that the word environment was added to the title (the original proposal was “planning and development court”) and some basic environmental assessment provisions were added. That it was not a fully integrated planning and environmental court was attributable to the relative weakness of environmental law per se in Queensland, where a high premium has traditionally been placed on growth and economic development. The State’s economy is highly dependent on primary industries such as mining and gas, and there is also a heavy reliance on tourism, with large-scale resorts dotted along the coastline. Conservation groups, including the Greenies (as they are known in Queensland) are seen as extreme, and have not assumed the central role in the planning/environment consensus that they have in New Zealand and in many European countries.

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However, the Integrated Planning Act 1997 promises a significant change. There has been a big uplift in the volume of applications to the Court for declarations, and this is expected to increase because of the need to overcome the uncertainties of the new and radically different planning system. In due course, when the roll-over process is complete, the Court’s jurisdiction will have expanded across environmental as well as planning legislation.

6.9.1 Procedural rationalisation, substantive integration and the proposals for reform The last decade has seen much controversy in Queensland over the reform of its planning system. A 1990 discussion paper issued by the Department of Planning, Is it too complex? identified a maze of overlapping requirements, and multiple approvals and appeals systems, resulting in poor accountability for decision making, poor coordination of referral agencies, lack of public input and lack of civil enforcement mechanisms. That report paved the way for consultation on a proposed Planning, Environment and Development Act (“PEDA”) process, which was to introduce a substantial new Act of that name to deal with planning, building, subdivision and sewerage and water supply approval, and thereby to secure a “one stop shop” approval system. It would also have reformed the planning scheme hierarchy, introducing an effective regional authority level, and enhancing co-operation between the different levels. It proposed the abolition of rezoning, the cornerstone of the Queensland system, in favour of a new development assessment regime, with far more flexibility. The package also included a proposal for a Planning and Environment Court which would have had a significantly greater role than the present model, with the following features:  full time assessors who would have special expertise, and be appointed to deal with certain merits matters when sitting alone, although limited functions in enforcement matters;  appeals on points of law to a judge of the Court;  in building matters a party could be represented by a lawyer only if both the parties agreed;  proceedings with as little formality as possible, without robing. The divisions of the Court would not be bound by the rules of evidence;  expert witnesses could only be called on notice, and leave would be required to cross examine these experts;  use of directions hearings to identify the issues very clearly before the hearing;  use of mediation, not to be compulsory but to be strongly encouraged by the Court, with a list of approved mediators;

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 parties to bear their own costs. This proposal owed much to the New South Wales experience. But the legislation did not proceed. There was a change of government in February 1995, and a change of emphasis in government policy. There were also concerns as to the cost of implementing the entire model. Some saw it as unwarranted in a system of Queensland’s size, and others depicted it as jumping on a bandwagon started by New South Wales. The legal profession also came out against change, and argued that the existing system worked well by providing speedy decisions and a high standard of decision-making. It was opposed to a trend towards what it called “tribunalising” the planning system, including the use of assessors, and insisted that lawyers were required to deal with both law and fact in the planning system. It also felt that the cost of the new structures could not be justified and felt that the existing system provided speedy, relatively informal and relatively cheap access to justice. The upshot of the reform process, therefore, was the Integrated Planning Act of 1997. It was narrower in its ambitions, dealing only with the rationalisation of development consent. But it has changed the face of Queensland’s planning laws, and its full effects are yet to be felt.

6.9.2 Speed and delay It is clear that the Court effects a quick turn around of its business. One of the reasons for this is the relatively informal pleadings system which the Court has developed over time, and which allows the clear identification of the issues of both fact and law well before the hearing, and confines the parties to those issues. Another reason is the efficiency of the callover system discussed above. Many of those to whom we spoke praised the calibre of the judges, and stressed the advantages of having a judge who was expert in the area, which saved time at hearings and on interlocutory matters. Related to this is the small number of specialised lawyers appearing on a regular basis, and even although their presence reinforces the formal and legalistic nature of proceedings, it probably actually serves to speed matters up. There is also a relatively small number of local experts available to give evidence, and this also assists in running a smooth system.

6.9.3 Incorporating expertise There is little debate on the ability, or lack of ability, of the Planning and Environment Court to deal with matters of increasing complexity. As we have noted there are no assessors on the Court and the Court does not see the need as yet for calling its own experts on a particular point. The Court-directed mediation provisions do allow for the appointment of experts as mediators, but we understand they have to date been used on only one occasion (when two co-mediators were appointed). This can be explained by the planning bias of the Court. Environmental issues are only now beginning to emerge. There is sufficient expertise within the Court itself to deal with most planning issues, and the Court is happy to prompt one or other side to produce

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more expert evidence on a given point. Gaps rarely emerge on issues within its remit. This may change when cases start to come before the Court on technical environmental impact assessment issues, but there is a strong view locally that the system, with its reliance on expert evidence tested by cross-examination, is flexible enough to cope with change. We have already noted the strong opposition of lawyers to allowing non-lawyer experts any role in deciding even the smaller merits matters, and this may prove a problem in introducing further reforms.

6.9.4 Encouraging informality The Planning and Environment Court makes few concessions to informality. It has the character of a closed legal shop. Counsel are fully wigged and gowned, even in this tropical climate, and there is no atmosphere of public participation. Although prehearing negotiation is common, mediation is not an established feature of the jurisdiction.

6.9.5

Access to justice and locus standi

As a matter of law, there is a wide facility for public access to the Court, through third party rights of appeal and through general access provisions. However, in practice, the situation is different. A major barrier to practical access is the cost of the system to participants. Legal and expert fees at the level we mentioned above may not be a problem for large-scale developers, but are a clear discouragement to parties in smallscale matters. Despite being at District Court level the costs tend to be in the order of Supreme Court standards, and the technicality and formality of the system suggests that there is a need to engage specialist and expensive counsel to have realistic chances of success. Although third parties will be protected from an award of the other side’s costs unless their behaviour has been grossly unreasonable, they will encounter expense in providing representation and expert evidence.

6.9.6 Costs of justice As we have commented above, it is difficult to estimate the cost to the State of providing the Court because its administration in inseparable from that of the District Court. It has no assessors or commissioners, and has use of District Court facilities. It is not regarded as an expensive court to run.

6.9.7 Special rules of evidence and procedure The Court is in effect a sub-division of the District Court to which has been assigned specialist judges and a merits jurisdiction. It has its own Rules of Court, and these are augmented by the Uniform Civil Procedure Rules which apply to all courts in Queensland.

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6.9.8 Remedies The Court for the most part acts as an appellate body on planning and, to a limited extent, environmental consents. It has the additional powers to grant declaratory judgement and injunctions, with a liberal standing test.

6.9.9 Extent of jurisdiction The Court does not enjoy either civil (apart from the power to grant an injunction) or criminal jurisdiction. Criminal matters commence in the magistrates’ court, and may be dealt with either there or in the District Court where a planning judge may be assigned to the matter. Nor does the Court have a judicial review jurisdiction.

6.9.10 Original jurisdiction The Court has no original jurisdiction.

6.9.11 Level of jurisdiction The specialist Court retains the last say on the merits of any matter coming before it, and the only appeal is on a point of law to the Court of Appeal. The power to exempt major projects from the system, the “fast track” process, potentially undermines this hierarchy by transferring decision on merits to the Minister. However, it has proved to be more of a “slow track” process and is rarely used today. Other matters go straight from the local government process to the highly technical and legalistic Planning and Environment Court. This is true even for relatively simple merits cases which lack a substantial legal content, though these are either settled or set down as a half-day or one-day matter.

6.9.12 Definition of jurisdiction and creation of environmental law As we have seen above, there is little co ordination between the various statutes in this area in providing a definition or common framework for environmental decisionmaking. One still has to look at one of a long list of defined statutes over which the Planning and Environmental Court has jurisdiction. However, this will change as other statutes come to be rolled into the integrated development assessment system (IDAS) under the Integrated Planning Act.

6.9.13 Treatment of central and local government The State maintains a special exemption from planning control for Crown land (in the ownership of the State or the Commonwealth of Australia).

6.9.14 International obligations In part because of the planning orientation of the Court, international obligations have played little or no part in its deliberations.

6.9.15 Guardianship of the environment There is no guardian of the environment role for the Court and indeed there seems to be no body specifically designed to fulfil that function. The Environmental Defenders Office is funded by the state to promote such a role, but the size of the Office prevents it from asserting a strong state-wide profile.

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6.9.16 Balance in the system The balance struck in Queensland is towards the pro-development end of the spectrum, and this is reflected in the role of the Court. Its central purpose continues to be the swift processing of appeals against refusal of development consents (or the imposition of conditions), and the need to deal quickly and efficiently with appeals against development. This has been achieved successfully, while still providing open standing requirements and liberal costs provisions to ensure public participation in the process. However, there is less consensus in the State about the role of non-development interests in the system than in New South Wales and New Zealand. The conservation movement tends to be seen as extremely radical in terms of demands, and is not accepted as an integral part of the process as it is in New Zealand. This is partly reflected in the relatively unadvanced and poorly integrated treatment of environmental law, which is still regarded by most lawyers who practice before the Planning and Environment Court as very distinct from their own planning law speciality. The balance in Queensland appears to weigh in favour of private property rights, and the perception is that the Court remains very reluctant to interfere with these rights on public environmental grounds.

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7 South Australia 7.1 The establishment of a specialist court The State of South Australia has also established a specialist environmental court1. As with the other Australian States, there was formerly a State appellate body for planning and development matters: the Planning Appeal Board, established by the Planning and Development Act 1966, which had become from 1982 the Planning Appeal Tribunal2. The Environment, Resources and Development Court (“the ERD Court”) was established by the Environment, Resources and Development Court Act 1993 (“the ERDC Act”), from late 1993. It commenced operation on 15 January, 1994. The influence of the New South Wales model is apparent in many features of the Court’s design and operation. The ERD Court is a court of record, although it is established at District Court level rather than, as with New South Wales, at Supreme Court level. The District Court is the intermediate court in South Australia, standing between the Supreme Court and the Magistrates’ court. A decision of the Supreme Court of South Australia is subject to an appeal only to the High Court of Australia. The courts in South Australia are administered by the Courts Administration Authority, an independent statutory authority, which employs the staff of the courts and pays the salaries of the officers and members of the courts. It has the care and control of all the courts buildings. The governance of the courts is by the State Courts Administration Council (Judicial Council), a body comprising the Chief Justice (the Supreme Court) the Chief Judge (the District Court), the Chief Magistrate, their deputies, and a representative of the participating courts.

7.2 Members of the Court The Court is comprised of 2 full-time judges, 3 full-time commissioners, a magistrate/master and 24 part-time commissioners.

7.2.1 Judges A Judge of the Environment, Resources and Development Court is a judge of the District Court who has been designated by the Governor of South Australia as a judge of the Court. A person may only be appointed a judge of the District Court if he or she is a legal practitioner of at least 7 years’ standing. There are 2 judges committed full-time to the work of the Environment, Resources and Development Court. One of these is designated the Presiding Member, appointed by the Governor, after consultation with the Chief Judge of the District Court. The Presiding Member is responsible for the administration of the Court. Other judges in the District Court have recently been

1

We are particularly grateful for the assistance given to us for this chapter by Judge Christine Trenorden of the Environment, Resources and Development Court. 2 Under the Planning Act 1982.

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designated judges of the Environment, Resources and Development Court, to cover emergencies. Judges are appointed by the Governor in Council, in the same way as any other judge is appointed. Pursuant to the District Court Act 1991, a judge must retire on attaining the age of 70 years, and cannot be removed except on an address from both Houses of Parliament praying for his or her removal. The salary of a judge is determined by the Remuneration Tribunal and salary cannot be reduced by subsequent determination. It is currently $149,758.00 p.a. The Remuneration Tribunal Determination also specifies the travelling and accommodation allowance payable in respect of work necessitating an overnight away from home.

7.2.2 The Master/Magistrate The Master/Magistrate is also a Master of the District Court. He is available to the ERD Court on a limited basis, primarily because of his workload in the District Court. The Act provides that a Magistrate holding office under the Magistrates Act 1983 may be designated by the Governor to be a member of the ERD Court, and that a Master holding office under the District Court Act 1991 may be designated by the Governor as an officer of the ERD Court3. To be appointed as a Master under the District Court Act, a person must be a legal practitioner of at least 5 years’ standing. Eligibility to be a magistrate is also 5 years as a legal practitioner. The Court Act provides that one person may hold both positions in the ERD Court. The salary of a Master is that fixed by the Remuneration Tribunal for a Magistrate in Charge. Leave and other entitlements are the same as those for a Commissioner. A Master must retire on reaching the age of 65 years.

7.2.3 Commissioners Commissioners are appointed to the Court by the Governor, and to be suitable for appointment, must be persons with practical knowledge of, and experience in the following: “10. … (2) … (a) local government; or (b) urban or regional planning; or (c) architecture, civil engineering, building, building safety or building regulation; or (d) administration, commerce or industry; or (e) environmental protection or conservation; or (f) agricultural development; or (g) land care or management, housing or welfare services; or (h) heritage; or (i) resource exploration, recovery or production; or (j) any other field which is relevant to a jurisdiction conferred on the Court by a relevant Act. …” 3

ERDC Act, s.11.

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and “ (2a) A commissioner appointed as a native title commissioner must be a person with expertise in Aboriginal law, traditions and customs.” However, the Commissioner may only exercise the jurisdiction or powers conferred on him or her by the Governor in writing. All the full-time Commissioners have planning qualifications and may only sit on matters under the Development Act (excepting building disputes and criminal). The majority of the work of the Court is in this area. A full time Commissioner must retire on reaching age 65 but may retire at or after 55 years of age. The rights to leave of the Commissioner are determined in accordance with the Public Sector Management Act although a Commissioner is not a public servant4. This entitles the Commissioner to four weeks recreation leave per year, twelve days sick leave per year and ninety days long service leave after the first ten years, on full pay, with nine days long service leave accruing thereafter in respect of each subsequent year until the end of the fifteenth year, after which fifteen days long service leave accrues in respect of each year. A Commissioner is paid a salary as determined by the Remuneration Tribunal which is currently $113,816 p.a. This is the same as the salary paid to a Stipendiary Magistrate. There is also the possibility of appointment of part-time Commissioners, who tend to be practising consultants, academics or retired professionals. Appointments from the last two categories have worked reasonably well in practice, but there are inherent problems in appointments from practising consultants because of the possibility of conflict of interest. We learnt that there was strong concern that part-time Commissioners might not have made an informed decision about whether to accept appointment, and that some appeared not to have contemplated the possibility of a conflict of interest arising, with the result that any practice they do have in the area of the Court’s jurisdiction would possibly be curtailed by accepting a position as part-time Commissioner of the Court. Part-time Commissioners have been appointed for varying lengths of time, from between three and five years. There is no age barrier to continuing as a part-time Commissioner. The sitting rate for part-time Commissioners is $173 per four-hour session. The Court currently has 24 part-time Commissioners, about six of whom are retired professionals with the remainder continuing to be involved in professional practice or employment. Part-time Commissioners do not generally write reasons, which they prefer to leave to the full time members of the Court. The only exception is Building Disputes, where two part-time Commissioners sit together to hear and determine a matter. The consequence here is that one of the Judges spends considerable time assisting with the drafting of written reasons.

4

The terms of employment of Commissioners are prescribed by the ERD Act, Sched. 1.

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7.2.4 Training for Judges and Commissioners The Court has endeavoured to provide some basic training, for the part-time Commissioners, as a group, both with respect to ADR techniques and processes and the function of hearing and determining a matter. The training has been basic and more training would be beneficial. However, there is also the view that the best training is on-the-job training. Until recently no training was provided for any person on appointment to the Court, but there are now occasional “information days” for Commissioners with a view to informing them of their responsibilities and duties and how they should perform their roles. This was organised when it became evident that most of the part-time Commissioners had little understanding of what was expected and required of them, when they were appointed. The Court has also organised ADR training courses for both full time and part-time Commissioners and a comprehensive mediation training course for Native Title Commissioners. Under the native title legislation, the primary role of native title Commissioners is mediation.

7.2.5 Special allowances In addition to the salary payable to Judges, Commissioners, Masters and Magistrates, a conveyance allowance (not “salary”) is payable to each of them fortnightly at an annual rate of $8,739 for a Judge of the Court and $7,471 for the Master/Magistrate and the Commissioners. Alternatively each may elect to have a motor vehicle selected from a list of vehicles available, for private and official use (fully maintained, serviced, insured and fuelled (except where on leave or absent from duty for more than seven days) by the Government). Conditions apply, including that the vehicles be available for official use by other persons at all times the Judicial Officer is on duty. If the Judicial Officer elects, his or her salary and allowances are abated by an amount determined by a formula which effectively takes away the conveyance allowance and abates the salary by approximately $750, or more, depending on the type of vehicle selected. Members of the Court also receive reimbursement for the cost of one home telephone facility, being rental fees and one-third of metered (local) calls.

7.2.6 Procedure for appointments to the Court All members of the Court are appointed by the Governor in Council. Effectively the Attorney General consults with the Minister for the relevant Department and a list of names is compiled and put forward to Cabinet. Very rarely, the Presiding Member of the Court is consulted. The exception to this was the appointment of Native Title Commissioners. Expressions of interest/nominations were sought from the public and interest groups or stake-holder bodies through public advertisement and notification.

7.2.7 Career prospects Career prospects do not appear to be good. There is no position within the judicial area to which a Commissioner could aspire. For Judges, movement upwards in the hierarchy is extremely rare. Unlike experience in New South Wales, an ERD Court Judge will tend to be seen as a specialist and unsuitable for appointment to the Supreme Court unless he or she moved out of the ERD Court and sat for some time as a District Court Judge in the general civil and criminal jurisdictions of that Court.

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7.3 External relationships There are no external or special relationships between the Court and other bodies in the jurisdictions dealing with environment, planning, heritage, irrigation or water resources. However, under a recent amendment to the Development Act, the Minister has a “fast track” power to declare a development or project to be of major importance, in which case it is removed from the normal permitting system altogether. It becomes instead subject to assessment by the Major Developments Panel5 and decision by the Governor6 from which there is no right of appeal. Nor may proceedings be brought for judicial review, a declaration, injunction, writ, order or other remedy to challenge or question any decision or determination made by the Governor, the Minister or the Major Developments Panel7. In the Native Title jurisdiction, the Minister for Mines and Energy has the right to overrule a determination of the Environment, Resources and Development Court if he considers it to be in the interests of the State to do so. He may then substitute another determination that might have been made by the Court.

7.4 Resources The Court’s annual budget is established in consultation with the Courts Administration Authority which has an overall annual budget of $60m. In establishing the overall CAA budgets, the Authority consults with the Judicial Council before submitting its bid to Government through the responsible Minister, the Attorney-General. The annual budget in 1996 was $1,646,000. Expenditure was made up primarily of salaries, at $1,436,000 (including on-costs). The difference went to Court administration ($110,000) and work on Native Title ($100,000). The Court has courtrooms, conference rooms, chambers, registry and administration office and library space allocated in the Sir Samuel Way Building, a Court Administration Authority building predominantly occupied by the District Court of South Australia. The support staff for the Court comprise the Registrar, Assistant Registrar, Case Manager (Native Title) 3 registry clerks (including the listing officer) and one clerk/secretary to service each full time member of the Court and the group of part-time members.

7.5 Business management The Court sits primarily in Adelaide, but in matters relating to rural land the Court sits in a country town where there are appropriate facilities, nearest to where the land is

5

Development Act, s.46A. The Panel comprises the Presiding Member of the Development Assessment Commission, a member of the EPA, and persons with a background in, respectively, the commercial sector, environmental conservation, local government and environmental assessment. 6 Development Act, s.48. 7 Development Act, s.48E.

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situated. This enables the Court more easily undertake a site visit (as it usually does in planning appeals) and it may also reduce the cost for parties. Business is allocated by the listings officer, subject to the approval of the Presiding Member. Cases are generally allocated to part-time Commissioners according to their availability, having regard to the issues in the proceedings and the specialist expertise of the Commissioners. With respect to the Judges and the full-time Commissioners, work is allocated generally on the basis of an even and fair distribution of workload. The Court uses the Information Technology System of the Courts Administration Authority. The ERD Court currently uses a database system to record lodgements of cases and case “events”. This system generates the Court’s cause lists and provides for an electronic listing diary. There is currently only limited capacity for statistical reporting in terms of electronically generated workload and caseflow information, and analysis. However, a major upgrade of the system is underway which will significantly enhance the Court’s case management and data analysis capabilities. The IT system is also used for communication between staff and/or judicial officers. All judgements are entered on JURIS (Judicial Research Information Systems) and can be accessed by users. Some judicial officers and staff have access to the Internet.

7.6 The Court’s jurisdiction The Environment, Resources and Development Court Act 1993 confers on the Court various general and ancillary powers, but the various power to hear appeals and applications is given by other specific Acts, most importantly the Development Act 1993 and the Environment Protection Act 1993. The Court has neither inherent jurisdiction nor any common law jurisdiction.

7.6.1 Planning and control over development The procedures through which development in South Australia is controlled are prescribed by the Development Act 1993. The object of the Act is to provide “for proper, orderly and efficient planning and development in the State …”. The rules are technically complex, but the basic components are: (1) The State prepares and maintains a Planning Strategy for development within the State. It is an expression of planning policy, and does not affect rights or liabilities; nor may it be taken into account for the purposes of any application, assessment or decision, except in the case of major projects8. (2) Development plans are prepared for parts of the State, and their task is to promote the provisions of the Planning Strategy9. Development plans are primarily the responsibility of the councils, but the Minister has powers to amend a plan at the 8 9

Development Act, s.22. Development Act, s.23.

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council’s request, and to act in default of the council10. The legislative framework allows for a strong element of State-level supervision and control: for example, a council may proceed with proposals to amend a development plan only if they have first agreed a “Statement of intent” with the Minister11. A Plan Amendment Report must then be prepared and submitted to the Minister and, if approved, released for public consultation12. Final approval of the amendment is a matter for the Minister13. The Court has no role in relation to objections to the development plans. (3) All development in the State requires consent, but there are different categories: 

“complying development” as defined in the regulations or in the development plan: provisional development plan consent must be granted for such development (though it may still require other consents, such as under building control legislation), unless it is regarded as “being seriously at variance with the relevant development plan”14.



“non-complying” development, as so defined: consent may not be granted the Development Assessment Commission concurs



other development: three categories of development are defined for the purposes of development control, principally to define the extent of public notification and consultation that is required. The regulations or the development plan may assign particular types of development to Categories 1 (for which no public notification is required) or 2 (for which neighbour notification is required); otherwise all development falls within Category 3, for which public notice is also required15.

The consenting authority, normally the council, has broad discretion in granting or refusing permission. The application must be assessed against the development plan, the Development Regulations, any report from an authority/agency which the planning authority was required to consult and “such other matters as may be prescribed”16. Building consent applications must be determined in the context of the provisions of the Building Rules, (ie the Building Code of Australia) and any other documents or Standards adopted by that Code or the Regulations. There is an additional list of matters to be taken into account in relation to applications involving sub-division.

7.6.2 The role of the Court in relation to planning and development matters Appeal may be made to the Court by any person who has applied for a development authorisation, against a refusal, the imposition of conditions, and any other assessment, 10

Development Act, s.24. Development Act, s.25(1). 12 Development Act, s.25(9). 13 Development Act, s.25(14). 14 Development Act, s. 35(1) and (2). 15 Development Act, s.38. 16 Development Act, s.33. 11

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request, decision, direction or act of a relevant authority17. There is also a limited thirdparty right of appeal, by any person who was entitled to be given notice of a decision in respect of a Category 3 development, in respect of that decision18. Other rights of appeal or application to the Court under this Act include:       

appeal against notice requiring advertising hoarding to be removed; appeal against a refusal to grant certificate of occupancy; appeal against Enforcement Notice; appeal against Notice or Order requiring work to be done; application for determination of dispute re: effect of Building Rules; application for an Enforcement Order to remedy or restrain a breach of the Act; proceedings for an offence.

There is also, as with the New South Wales model, a general right for any person to apply to the Court for an order to remedy or restrain a breach of the Act (or its predecessor), whether or not any right of that person has been or may be infringed by or as a consequence of that breach19.

7.6.3 The Court’s jurisdiction in relation to environmental protection The Court has similarly wide powers in relation to environmental permitting, which is undertaken under the Environment Protection Act 1993. appeal against refusal to grant works approval or licence. The following rights of appeal or application to the Court are conferred by that Act:      

appeal against authority’s determination of the term of an approval or licence; appeal against a condition of approval or licence; appeal against actions of authority in relation to the works approval or licence; appeal against an Environment Protection Order, Information Discovery Order or Clean-Up Order issued by the authority; application for an Enforcement Order to restrain conduct, to take specified action or pay compensation; proceedings for an offence (summary jurisdiction).

The objects of the Act, which must be taken into account by the Court in its exercise of this jurisdiction, are: “10. (1) … (a) to promote the following principles (“principles of ecologically sustainable development”): (i) that the use, development and protection of the environment should be managed in a way, and at a rate, that will enable people and communities to provide for their economic, social and physical well-being and for their health and safety while– 17

Development Act, s.86(1)(a). Development Act, s.86(1)(b). 19 Development Act, s.85. 18

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(A) sustaining the potential of natural and physical resources to meet the reasonably foreseeable needs of future generations; and (B) safeguarding the life-supporting capacity of air, water, land and ecosystems; and (C) avoiding, remedying or mitigating any adverse effects of activities on the environment; (ii) that proper weight should be given to both long and short term economic, environmental, social and equity considerations in deciding all matters relating to environmental protection, restoration and enhancement; and (b)to ensure that all reasonable and practicable measures are taken to protect, restore and enhance the quality of the environment having regard to the principles of ecologically sustainable development, …” In determining appeals under this Act the Court must “have regard to and to seek to further the objects of the Act;” and also have regard to the general environmental duty (“a person must not undertake an activity that pollutes, or might pollute the environment unless the person takes all the reasonable and practicable measures to prevent or minimise any resulting environmental harm”). In addition, the Court must have regard to any relevant environment protection policy developed under the Act after public consultation, any relevant environment improvement programme or environment performance agreement (either existing or proposed) and have regard to relevant reports and assessments together with any public submissions made to the Environment Protection Authority in respect of the application.

7.6.4 Other legislation Jurisdiction is also conferred on the Court to determine the following appeals and applications under other legislation: 7.6.4.1 Heritage Act 1993  appeal against decision relating to heritage listing, by owner of land;  confirmation of Stop Order (emergency protection) issued by authority;  proceedings for an offence. The Court has to determine an appeal on the basis of whether a place is of heritage value namely, whether it satisfies one or more of the criteria set out in the Heritage Act. 7.6.4.2 Water Resources Act 1990  appeal by applicant against refusal to grant/renew licence/permit;  appeal against conditions imposed on licence/permit;  appeal against variation, suspension or cancellation of licence/permit;  appeal against prohibition or restriction imposed;  appeal against direction of the Minister or other authority;

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The objects of the Act include promoting recognition of the fact that water is one of the most important natural resources of the State and that it is a limited resource, and to establish a system ensuring the efficient use of water resources at a sustainable level, the sharing of water on a fair basis, and the maintenance of water quality. 7.6.4.3 South Eastern Water Conservation and Drainage Act 1992  appeal by applicant against refusal to grant licence;  appeal by applicant against decision to vary or add to conditions of licence;  appeal by land-holder against decision in relation to proposed works being carried out on land;  appeal against an Enforcement Notice. The objects of this Act include the prevention or minimisation of damage to agricultural production and the natural environment caused by flooding in the South East. 7.6.4.4 Irrigation Act 1994  appeal by applicant against refusal to include/exclude land from irrigation district;  appeal by applicant against imposition of conditions;  appeal by applicant against decision to exclude land from irrigation district;  appeal against decision as to factors on which irrigation/drainage charges are to be based;  appeal by applicant against decision relation to water allocation granted;  appeal by applicant against decision directing the carrying out of an act/activity;  appeal against decision relating to any matter affecting the appellant. 7.6.4.5 Local Government Act 1934  appeal against notice directing owner to take action to ameliorate unsightly condition of land or object or structure thereon;  appeal against decision of local authority to refuse authorisation, or to impose conditions thereon, in relation to a watercourse;  appeal against enforcement notice re watercourse. 7.6.4.6 Mining Act 1971  appeal against judgement/order of the Warden’s Court;  appeal against cancellation/suspension of exploration licence;  case of unusual difficulty or importance removed from Warden’s Court  application for a compliance order;  determination of compensation payable in specified circumstances. 7.6.4.7 Native title matters These matters arise under the Native Title (SA) Act 1994, the Mining Act 1971 and the Land Acquisition Act 1969. They include the following:  application for declaration re existence of native title;  application for determination re right to do future act on land which may be subject to native title rights.

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7.6.5 Ancillary powers In addition the Court has the following general and ancillary powers under the Environment, Resources and Development Court Act 1993:  to make binding declarations of right on matters within its jurisdiction20;  to make a restraining order preventing or restricting dealing with property of a respondent/defendant21;  to grant an interim/interlocutory injunction to preserve the subject matter of proceedings22;  to issue a summons requiring the attendance of a person to give evidence, or the production of documents23;  to refer a question of a technical nature for investigation and report by an expert24;  to enter and inspect land or a building relevant to proceedings25;  to require the attendance before it of persons held in custody26;  to mediate or conciliate in proceedings27;  to make an order for costs28;  to excuse a failure to comply with legislation29;  to amend proceedings/application30;  to require security for costs and/or an undertaking as to payment of compensation/damages31;  to determine and punish contempt of the Court32.

7.6.6 Criminal jurisdiction The Court has criminal jurisdiction under the Development Act, the Environmental Protection Act and the Heritage Act. However, it is not often invoked. There seems to be a reluctance to prosecute for alleged breaches of planning legislation, and the environment protection legislation is too new for any activity to have developed there. The desired result for an enforcing authority is generally rectification, which they believe is best obtained by way of an enforcement notice or civil enforcement proceedings. However, this may be to underestimate the potential value of the Court, which has the power to make orders against the defendant for rectification, in proceedings for an offence, in addition to any penalty that it may impose, in proceedings for an offence against the Development Act33.

20

ERD Act, s.28. ERD Act, s.28A. 22 ERD Act, ss.34 and 35. 23 ERD Act, s.22. 24 ERD Act, s.27. 25 ERD Act, s.24. 26 ERD Act, s.25. 27 ERRD Act, s.28B: see further below. 28 ERD Act, s.29. 29 ERD Act, s.33 (1). 30 ERD Act, s.33(2). 31 ERD Act, s.39. 32 ERD Act, ss.38 and 38A. 33 Development Act, s.106. 21

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One suggestion was that prosecutions in the Environment, Resources and Development Court are few because the exercise of the criminal jurisdiction is by the Magistrate of the Court who is only available to the Court on a limited basis, being also a Master in the District Court. But this is a matter of practice rather than a legal requirement, and there appears to be no reason why the criminal jurisdiction of the Court could not be exercised by a Judge of the Court. Perhaps the small number of matters in the criminal jurisdiction can also be explained by the history of the planning legislation. Prior to the Development Act a breach of the planning legislation could attract either civil enforcement proceedings or criminal proceedings. There was no power in the Magistrates’ court (which had jurisdiction for criminal proceedings) to make an order that a defendant rectify the breach, in addition to imposing a penalty. Accordingly local authorities tended to take the civil enforcement route in order to have a breach of the Act rectified. Since 1994 an authority has had the three options referred to above. While the Enforcement Notice provision appears to be used widely by local authorities, the action taken where there has been a failure to comply with an Enforcement Notice appears to be civil enforcement proceedings rather than prosecution. This is difficult to understand when the legislation clearly states that a failure to comply with an Enforcement Notice is an offence, and Section 106 enables the Court to order the defendant to take action to rectify the breach. It may be that local authorities are simply unaware of the possibility of achieving the desired end through criminal proceedings.

7.6.7 The nature of the Court’s jurisdiction There is a mix of appellate work and original applications that come to the Court. With the exception of the right of appeal from the Warden’s Court, all appeals to the Court are from the decision either of a local authority, the central development authority (Development Assessment Commission), the relevant Minister or other statutory authority responsible for making decisions which are subject to appeal rights to the Court. However, with the exception again of appeals from the Warden’s Court under the Mining Act, the Court has original jurisdiction, which means that it has all the powers and functions of first-instance decision-maker. The Court is obliged to follow precedent established by the Supreme Court of South Australia and the High Court of Australia; they being the superior courts. The text of all judgements is available electronically on a subscription service, JURIS; and the text of selected judgements (87 between January 1 and July 1, 1998) are publicly available on the internet. Selected decisions are reported in the Environment and Development Law Reports published by the Law Society of South Australia Inc. Summaries of selected decisions are also published in the South Australian Planning and Environment Decisions - Case Summaries published by the Adelaide Law Review Association, the University of Adelaide, and in the Environmental Law Reporter published by the New South Wales Environment and Planning Law Association. A copy of any decision or order given or made by the Court is available from the Court Registry for the statutory fee of $4.50 per page.

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7.6.8 Does the Court have cognisance of international obligations? There is no statutory requirement. Whether the Court could or should have cognisance of international obligations is open to argument.

7.7 Practice and Procedure 7.7.1 Third party rights As we have seen, there is a general third party right similar to that in New South Wales. Under the Development Act34, any person may apply to the Court for leave to issue a summons for an order to remedy or restrain a breach of the Act (known as “an enforcement order”) whether or not any right of that person has been or may be infringed by or as a consequence of that breach. The right differs from the NSW provisions, however, in several important respects. First, application may be made ex parte, and the leave of the Court obtained to serving a summons on the respondent to appear before the Court to show cause why an order should not be made. The Court has to be satisfied that there is a case to answer, before granting leave. The Court has held that this question: “. . . does not concern itself with any value judgment as to reliability or weight of evidence as such. Rather it involves an assessment as to whether there is some reasonable basis of evidence (not, on the face of it, inherently incredible) which, if it was accepted by the Court, would be capable of establishing the matters required to be proved by sub-s. (1) of s.36 on the balance of probabilities. Put in another way the Judge, in considering an application brought before the Court in manner required by sub-s. (2), is required to pose and answer this question: ‘On the assumption that all the admissible and relevant evidence of primary fact considered at its strongest from the point of view of the case for the applicant is accurate, and on the further assumption that all inferences most favourable to the applicant which are reasonably open, are drawn, is the evidence capable of producing in the mind of a Judge satisfaction, on the balance of probabilities, that the proposed respondent has contravened or failed to comply with the Act in a manner which potentially entitles the applicant to relief of the nature stipulated in sub-s. (3)?’”35

If, at the substantive hearing, the Court is satisfied on the balance of probabilities that the respondent has breached the Act, the Court may grant an order requiring the respondent to refrain from the unlawful conduct, or to make good the breach within a specified time36. The Court has held that it has power under the section to entertain an application 34

Development Act, s.85. DC Of Willunga v Michael & Jennifer Wobring No. ERD-96-488 Judgment No. OE401 [1997] 401 SAERDC (15 January 1997), applying The Queen v Judge Stevens; ex parte Tip Top Dry Cleaners Pty Ltd (1986) 43 SASR 1. 36 It will be necessary for the Court first to be able to identify both the breach, and the works that have been carried out pursuant to it, which may not be possible in a case where works were already carried out under an authorisation which subsequently lapsed: see eg Vandenberg v Hannaford & Artesia Pty Ltd (No 2) No. ERD-96-433 Judgment No. OE402 [1997] 402 SAERDC (30 January 1997). 35

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complaining that, although the respondent’s conduct may have been in accordance with a development authorisation, that authorisation was invalid and hence the respondent was in breach of the Act37. Second, the Court has various ancillary powers: to adjourn proceedings to allow the respondent to apply for development authorisation38; to order an applicant to provide security for costs39 and to make interim orders40. In addition, there are financial remedies, which cut both ways: the Court may order compensation for any loss or damage suffered by the applicant41, or the applicant’s costs or expenses; and it may also order the payment of exemplary damages to the council or the State, as appropriate42. Alternatively, if the Court is satisfied that there was no breach, and that the respondent has suffered loss or damage as a result of the proceedings, the Court may, if satisfied that it is appropriate to do so, require the applicant to pay compensation to the respondent, in addition to any order for costs43. Third, any application under the section must first be referred to a conference under section 16 of the Court’s Act44. Similarly, under the Environment Protection Act45, an application may be made to the Court for leave to issue a summons for an enforcement order or for an order that compensation or damages be paid, but in this case, if the applicant’s interests are not directly affected by the subject matter of the application, he or she must, in addition to obtaining the leave of the Court to serve the summons (the documents must show there is a case to answer), obtain leave of the Court to bring the proceedings46. Before granting leave, the Court must be satisfied that: (a ) the proceedings on the application would not be an abuse of the process of the Court; and (b) there is a real or significant likelihood that the requirements for the making of an order would be satisfied; and (c) it is in the public interest that the proceedings should be brought. The question of whether there is a case to answer is determined by the Court on the documents (application and supporting affidavits). 37

Frazetto V Ahrens Engineering & Dc Kapunda & Light No. ERD-97-391 Judgment No. OE455 [1998] 455 SAERDC (15 January 1998). 38 ERD Court Act, s.85(14). 39 ERD Court Act, s.85(15). 40 ERD Court Act, s.85(11). 41 ERD Court Act, s.85(6)(f). 42 ERD Court Act, s.85(6). The power to award exemplary damages may be exercised only by a judge (s.85(8)). Damages are to be assessed having regard to any detriment to the public interest resulting form the breach; any financial or other benefit that the respondent sought to gain by committing the breach, and any other matter the Court thinks relevant (s.85(7)). 43 ERD Court Act, s.85(16). 44 Development Act, s.85(5): as to conferences, see further below. 45 EP Act, s.104. 46 EP Act, s.104(7).

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7.7.2 Rules as to pleadings and their amendment The Environment, Resources and Development Court Rules 1995 apply with respect to practice and procedure of the Court. There are no rules as to pleadings but the Rules set out the nature of the information required in a notice of appeal and application. The Rules are not voluminous, nor do they prescribe forms, generally; rather they enable the Court to be flexible in its approach to the conduct and management of the matters before it.

7.7.3 Interim Orders and Rulings As we have seen, the Court has power to grant interim and interlocutory injunctions. It may convene directions hearings and does in certain matters, either at the request of a party or on the Court’s initiative. With respect to applications for enforcement orders under the Development Act and the Environment Protection Act, it has the power to make interim orders pending the final determination of the application.

7.7.4 Joinder of parties The Court, under its own Act, has the power to join a person as a party to any proceedings (other than criminal proceedings). In representor (third party) planning appeals the applicant is automatically a party. In a planning appeal where the authority has acted, in refusing an application or imposing a condition, at the direction (as opposed to the recommendation) of a prescribed body, that body (eg, Environment Protection Authority) is a party.

7.7.5 Ability of other parties to intervene Under the Court Act, a Minister may “if of the opinion that proceedings before the Court involve a question of public importance”, intervene in them47.

7.7.6 Requiring security The Court has a general power under its Act to order a party to give security for the payment of costs or an undertaking as to the payment of monetary amounts that may be awarded against that party48. This does not apply to proceedings in respect of an offence.

7.8 Decision making 7.8.1 Conferences There is no provision for proceedings to be disposed of by written representations. However, almost all matters before the Court other than criminal proceedings must, in the first instance, go to a conference of the parties convened by the Court. The Court may dispense with a conference if it is satisfied that no useful purpose would be served by a conference between the parties prior to the hearing of the matter or for some other justifiable reason. Dispensation is rarely granted.

47 48

ERD Court Act, s.17(5). ERD Court Act, s.39(1).

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A member of the Court chairs the conference and is directed by the Act to “to assist the parties to explore any possible resolution of the matters in dispute without resorting to a formal hearing”49. The member of the Court presiding at a conference may require a party to furnish particulars of his or her case. If a settlement is reached at a conference, provided that it is not inconsistent with a relevant Act, the member of the Court presiding may accept it and make an order giving effect to the settlement. The member presiding may also permit a party to withdraw from proceedings in the course of the conference. The conference is held in private and nothing said at a conference is admissible in any subsequent hearing except with the consent of all parties. Approximately 60% of matters either settle or are withdrawn at the conference stage. A conference is usually held within four weeks of the institution of the proceedings or of the filing of an appearance by the respondent in an application for an enforcement order. Conferences may be, and often are, adjourned to continue at a later date. The Court also has mediation powers in relation to proceedings instituted in the Court. The proceedings can be referred for mediation either to a member of the Court or to an external mediator, on whom the parties agree. As with the conference, mediation is private and nothing said in the course of the mediation is admissible in any subsequent hearing without the consent of the parties. If a settlement is reach through mediation, an order of the Court may give effect to the settlement, provided that it is not inconsistent with the relevant Act.

7.8.2 Composition of the bench For the hearing of any particular proceedings the Court may comprise: (1) a Judge sitting alone, (2) a Commissioner sitting alone, (3) a Judge sitting with two Commissioners, (4) a Judge with one Commissioner or (5) two Commissioners sitting alone. The composition of the Bench is determined by the Presiding Member of the Court. For the hearing and determination of certain matters, if the Bench is to include Commissioners, it must include only specialist Commissioners appointed under the legislation pursuant to which the proceedings are brought50.

49

ERD Court Act, s.?? Eg, an appeal under the Environment Protection Act must be heard by a bench comprising, where the Presiding Member has determined that the bench should include Commissioners, those appointed for the purposes of the Court’s jurisdiction under the Environment Protection Act. 50

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7.8.3 Hearings 7.8.3.1 General principles The Rules of Court strongly encourage the provision of statements of expert witnesses to the Court and to the other parties at least five clear business days prior to the commencement of the hearing. Notices of amendments to proposal plans (planning appeals) should be provided at least two clear business days prior to the commencement of the hearing. The principles governing hearings, (except in criminal or contempt proceedings), are clearly set out in the Court Act: (a) the procedure of the Court will, subject to this Act, be conducted with a minimum of formality; and (b) the Court is not bound by the Rules of Evidence and may inform itself as it thinks fit; and (c) the Court must act according to equity, good conscience and the substantial merits of the case and without regard to legal technicalities and form.” In accordance with those principles, the Court’s Rules contain the following preamble: “These Rules are to be construed and applied so as best to ensure the attainment of the following objects:    

the simplification of practice and procedure; the identification of the real issues between the parties prior to the hearing of proceedings; the saving of expense; and the fair and expeditious disposal of the business of the Court.”

The Rules specify as the “expectations of the Court” that the evidence of an expert witness shall be reduced to a written statement which will preclude the need for oral examination in chief. The Rules also acknowledge that a number of the parties before the Court will be unrepresented and seek to keep procedural matters simple. 7.8.3.2 Preliminary matters In large or complex matters, the Court of its own volition requires a directions hearing at which it may make orders or give directions as to the conduct of the hearing. There is no requirement in the Court Act to give public notice of a hearing but hearings for all Courts in South Australia are notified daily in the Cause List in the newspaper circulating throughout the State of South Australia. Under the Court Act, proceedings before the Court must be heard in public unless the Court has given directions that a hearing or part thereof be held in private. Matters to be heard and determined by a single member of the Court are usually given a hearing date at the conclusion of the conference. Matters for hearing before a bench that comprises more than one member are generally placed in the callover list and given a

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hearing date at a callover. The Court canvasses with the parties or their representatives the estimated length of the hearing and the availability of parties, their witness and counsel before fixing a hearing date. 7.8.3.3 Adjournment The Court has powers to grant an adjournment of the hearing. The Registrar generally exercises this power, although an application for adjournment may be referred to a Judge.

7.8.4 Evidence The relevant legislation provides that the policy documents to which the Court has to have regard, are public documents of which the Court will take judicial notice without formal proof51. The Commissioners, who are specialist assessors, may as a matter of law make use of their specialist expertise. The Supreme Court has proved reluctant on appeal to overturn findings of fact made by the Court, having regard to its specialist expertise. The Court encourages technical witnesses to produce a statement of evidence to the Court in advance. Witnesses may be cross-examined as of right. In multi-party hearings, the respondents who have the same or similar interests will make arrangements between themselves as to the cross-examination of an applicant’s technical witness, so as to avoid duplication. Proceedings before the Court, particularly appeals from the decision of an authority, are conducted neither in a truly adversarial nor a fully inquisitorial manner. The Court, through its specialist Commissioners particularly, does make inquiry of the witnesses, particularly expert witnesses. However, such inquiry is generally conducted following cross-examination and any re-examination of a witness. The balance between the inquisitorial and the adversarial approach depends to a large extent on whether the parties before the Court are legally represented. For example, a hearing may be conducted by way of a process much more akin to the inquisitorial when no party is represented in a planning appeal, than in the hearing of an appeal involving a large and costly proposal where all parties are likely to be represented by senior or very experienced counsel. The Court does not robe. Evidence is generally given on oath or affirmation. Evidence has been taken per telephone and will be taken in the future per videoconference facilities. The Court has power to refer a question of a technical nature to an expert for investigation and to report. The Court, of its volition, has called a witness to give expert evidence where it has considered that the issue has not been covered by the parties and is relevant to the matter before it. Usually, however, one or more of the parties will call an 51

See eg Development Act, s.??

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expert to give evidence once the Court has intimated that it desires to hear evidence with respect to a specific technical issue.

7.8.5 Representation of parties A striking feature of the Court’s practice, which distinguishes it from the other Australasian environmental courts, is the extent to which parties dispense with legal representation. In the year 1995/96, 81% of appellants represented themselves at conferences, and 68% of appellants represented themselves at hearing, an increase on the previous year of 10%. No figures are available for self-representation at conference in previous years. It is rare for parties to be unrepresented in applications for Civil Enforcement Orders. On occasion, a party will be represented by another family member or a friend, or a number of appellants may, in recognition of their common interest, select one of them to represent the whole. Where a party is not represented, it is for the Court to ensure a fair hearing. The Court must provide an interpreter, where required. Assistance is given to an unrepresented party within the limits of fairness and equity. The Court encourages unrepresented parties and provides assistance with procedural aspects, but insists that they endeavour to understand the Court’s requirements and prepare accordingly. The large number of lay litigants at the conference stage seems to be a consequence of the developing appreciation and acceptance, by the legal profession, of the role of the conference. Initially, there was suspicion of the conference process. It was seen by lawyers as an opportunity to ascertain the number of guns possessed by the other side, while endeavouring not to reveal the extent of one’s own armoury. Lawyers therefore encouraged their clients to have legal representation at the conference. That was particularly true of local authorities, who rarely in South Australia employ in-house legal staff. But many are now represented by their planning officer at the conference. Litigants who lodge their own appeal without legal assistance rarely think about engaging a lawyer until after the conference. It is also not unknown for a litigant in person with limited resources to be advised nowadays by his or her lawyer that legal representation is not needed at the conference, and simply to be given advice of the nature of the conference and what to expect. There is a long history of encouragement to litigants in person. This was the practice of both the Planning Appeal Tribunal and then the Planning Appeal Board, before the Court was founded. Although fees for filing appeals and other matters are not set by the Court, it appears that the Court has been successful in ensuring that these fees should be nominal, rather than that they should reflect the level of fees for the District and Supreme Courts, to enable wide access to the Court. The rationale for such an approach would appear to be that where a person is given a right of appeal against the decision of an authority then that person should not effectively have his or her right diminished or defeated by the cost of lodging an appeal or the need to have legal representation. Native title matters are different because the legislation including the Regulations setting the Court fees were required to be approved by the Commonwealth Government and to be consistent with the approach of the Commonwealth Government, namely the fees

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applicable to the National Native Title Tribunal and the Federal Court, for similar matters. The same philosophy underlies the Rules of Court, which do not prescribe forms of documents, but rather set out the minimum information required by the Court in an application or appeal. Thus, applications or appeals may be made by letter, provided that it contains the required information. The Rules reflect the flexibility of procedure in the Court by not requiring a prescribed pre-hearing process to be followed (with the exception of the conference) or pleadings to be filed. The Court endeavours to minimise the pre-hearing attendances by the parties, thus minimising costs, while endeavouring to ensure that the issues between the parties are clear, well prior to the hearing. In this respect, the Court’s approach is markedly less formal and more flexible than the practice that has developed in its counterparts in New South Wales and Queensland. For example, both those courts require that a party who is to be represented by an agent, as opposed to a barrister or solicitor, must provide the Court with a formal instrument appointing the agent. That is not required in South Australia. Again, in both Queensland and New South Wales, interlocutory-type applications must be made by motion (in New South Wales) and either by an application for directions or a separate interlocutory application in Queensland. This practice reflects the formal, standard approach of the mainstream Courts. In South Australia, the Rules merely provide that an application for an interlocutory order shall be by interlocutory application which must: “(a) be in writing, (b) set out the order sought and the grounds for it, (c) state whether the application is to be served on any person, and if so, upon whom”, and in certain circumstances shall be accompanied by an affidavit. The Court accepts applications in letter form. There is no requirement for a directions hearing in the Court as a matter of course. The emphasis is on court management of the matters pending in the Court, and to that end the Court may, of its own motion, and does in complex matters, call the parties in for a directions hearing. It appears to be the case, and to some extent it is expected that, such matters as might be the subject of an interlocutory application are raised and dealt with in the conference process. The majority of planning appeals are heard by a single Commissioner, sitting alone, who is a qualified and experienced town planner. It may be that an unrepresented party feels more at ease in presenting his or her case personally before a single member of the Court. Although parties do appear in person before a Full Bench (Judge and two Commissioners) it is less common (probably because of the nature of the matters that go to a Full Bench). The Court has not undertaken a survey of unrepresented parties, and did not find it possible to suggest other reasons for the high number of unrepresented litigants.

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However, it was suggested that the registry staff provided a higher level of assistance to unrepresented parties or would-be appellants (but not on the legal issues), than do the staff of the District or Supreme Courts.

7.8.6 Rights of participation for members of the public Non-parties may be able to participate in a conference, at the discretion of the member of the Court presiding. There is no right for non-parties to participate in a hearing.

7.8.7 Role of Judge in relation to hearings By the Court Act, where the Court is constituted as a full bench (Judge and two Commissioners sitting together) questions of law or procedure are to be determined by the Judge, while other questions are decided by a majority decision of all persons constituting the Court. Although the Court is not bound by the Rules of Evidence and may inform itself as it thinks fit, the Court takes the view that the Rules of Evidence may be applied in the interests of a fair and expeditious hearing. In the course of a hearing a Court is asked to and does rule on the admissibility of evidence.

7.8.8 After the hearing The Court has no specific statutory power to receive further submissions or take further evidence after the close of a hearing, but it has done so where it has been appropriate.

7.8.9 Issuing decisions The Court is not obliged to give written reasons for its decisions, but as a matter of practice it almost always does so. Decisions are sometimes given ex tempore but except on preliminary issues, such as questions of jurisdiction and applications to join parties, it is rare. Decisions are not read out in open Court. Generally decisions which have been reserved are simply handed down by being posted to the parties and where necessary, parties are given notice of a time for the hearing of submissions on final orders, with the decision or memorandum.

7.9 Appeals from the decision of the ERD Court An appeal against a decision or order of the Court lies to the Supreme Court of South Australia. The Court Act provides that appeals against a final decision/order of a Judge of the Court, or a full bench (Judge sitting with two Commissioners) are to the Full Court of the Supreme Court. All other appeals are to a single Judge of the Supreme Court. An appeal lies of right on a question of law and by leave only on a question of fact.

7.10 Costs and expenses 7.10.1 Lodgement fees The fees for lodgement and hearings are set out in the Table below.

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Table 17: lodgement and hearings fees For all jurisdictions other than Building Disputes and Native Title Lodgement Hearing

$54.00 $108.00

Building Dispute

$162.00

Native Title Lodgement

$300.00

7.10.2 Awards of costs The Court does have power to award costs in certain circumstances, but not, generally, in appeals. It has a general power to award costs where in its opinion the proceedings are frivolous or vexatious or have been instituted or prosecuted for the purpose of delay or obstruction52. In addition it has a general power to grant costs where a party applies for an adjournment of the hearing, against that party53. Where proceedings are delayed through the neglect or incompetence of a representative, the Court may disallow the whole or part of the costs as between the representative and his or her client and order the representative to indemnify his or her client or any other party for the costs resulting from the delay or order the representative to pay to the Registrar for the credit of the Consolidated Account an amount fixed by the Court as compensation for time wasted54. Such orders may not be made against the representative unless he or she has been given notice of the proposed orders and allowed a reasonable opportunity to make representations and call evidence55. Other powers to award costs are conferred in relation to: (a) proceedings for an alleged contempt of an order of the Court56; (b) proceedings being an application for an Enforcement Order57; and (c) proceedings being an appeal against an Enforcement Notice issued by an authority. The Court also has power to award costs in proceedings for an offence.

7.10.3 Availability of legal aid In theory, legal aid is available for proceedings before the Court, through the Commonwealth and State Government Funded Legal Services Commission. In practice

52

ERD Court Act, s.17(4)(c); s.29(1). ERD Court Act, s. 29(2). 54 ERD Court Act, s.29(3). 55 ERD Court Act, s.29(4). 56 ERD Court Act, s.38A. 57 Development Act, s.85(17a). 53

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legal aid simply has not been available because of the many calls on limited legal aid funds for criminal and family law matters. An Environmental Defender’s Office was established in South Australia in 1996. Prior to that time free legal advice was available through a pro bono evening advisory service organised by lawyers practising in the area and known as the Environmental Law Community Advisory Service. That continues.

7.10.4 Costs of the system The Rules set out a scale of costs. As a minimum, the costs for a person represented would usually include not only legal fees but also, in planning appeals, the fees of a planning consultant. For a three-day appeal with junior counsel, costs would probably be at least $5,000. With a senior counsel, the figure would likely be more than doubled, especially if both senior and junior counsel appeared.

7.11 Alternative Dispute Resolution As we have seen, the statutory conference is in the nature of a conciliation conference. Mediation is also available under the Act. It may be on the initiative of the parties, with their joint agreement. Or the Court may itself endeavour to achieve a negotiated settlement “if it appears that there would be a reasonable likelihood of settling matters in dispute between the parties”58. As a matter of practice, where a hearing date for proceedings has been set, the Court embarks on mediation, either itself or by appointing a mediator, on the clear understanding that the hearing date will not be vacated. This policy has been adopted to give notice to parties that mediation is not to be used as a delaying mechanism. ADR has been more extensively used in practice in South Australia than in any of the other jurisdictions examined in this study. To understand why, it is necessary to look at the conference provision in the Environment, Resources and Development Court Act 1993, and its history, in contrast to the situation in other Australian Courts. The former Planning Appeal Board had no power to convene a conference between the parties to an appeal, but its successor, the Planning Appeal Tribunal, was given that power. The Tribunal was enjoined not to commence the hearing of proceedings unless it was satisfied that a conference of the parties, under the chairmanship of a Judge or commissioner of the Tribunal, had taken place, and unresolved differences remained between the parties. The Tribunal could only dispense with a conference if of the opinion that no useful purpose would be served by it, or there was some other good reason. It was originally proposed in the Bill establishing the Appeal Tribunal that the conference could be dispensed with should one of the parties be unwilling to participate. However, in the public consultation process that then followed, many of the submissions on the Bill expressed the view that a conference should be compulsory and the Bill was 58

ERD Court Act, s.28B(1).

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amended to achieve this. Other amendments were made during the life of the Tribunal to enhance its capacity to secure agreement. The current Act provides: “Conferences 16. (1) A relevant Act, or the rules, may provide that proceedings of a specified class must at first instance be referred to a conference under this section. (2) The purpose of a conference is to enable the member of the Court presiding at the conference (appointed by the Presiding Member of the Court selected in accordance with the rules) to assist the parties to explore any possible resolution of the matters in dispute without resorting to a formal hearing. (3) The Court may dispense with a conference if it is of the opinion that– (a) no useful purpose would be served by a conference between the parties prior to a hearing of the matter; or (b) there is some other reason that justifies dispensing with the conference. (4) A conference may, at the discretion of the member of the Court residing at the conference, be adjourned or reconvened from time to time. (5) Unless otherwise determined by the member of the Court presiding at the conference, a conference will be held in private. (6) Any settlement to which counsel or any other representative appearing on behalf of the party to the proceedings agrees at the conference is binding on the party. (7) The member of the Court presiding at a conference may– (a) if that member is a magistrate or commissioner–refer any question of law to a Judge of the Court for determination; (b) require a party to the proceedings to furnish particulars of his or her case; (c) determine who, apart from the parties to the proceedings (and their representatives), may be present at the conference; (d) subject to subsection (9), record any settlement reached at a conference and make any determination or order (including an order under, or for the purposes of, a relevant Act) necessary to give effect to a settlement; (e) on his or her own initiative, close the conference at any time if, in his or her opinion, settlement cannot be reached; (f) advise the Court if the conference does not reach a settlement within a reasonable time; (g) permit a party to withdraw from the proceedings (and make any consequential order that is appropriate in the circumstances); (h) give summary judgment (with costs) against any party who obstructs or delays the conference, fails to attend the conference

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or fails to comply with a regulation, or a rule or order of the Court; (i) do such other things as the rules of the Court may provide. (8) Evidence of anything said or done in the course of a conference under his section is inadmissible in proceedings before the Court except by consent of all parties to the proceedings. (9) The member of the Court presiding at a conference– (a) must not accept a settlement that appears to be inconsistent with a relevant Act (but he or she may adjourn the proceedings to enable the parties to explore the possibility of varying the settlement to comply with a relevant Act); and (b) may decline to accept a settlement on the basis that the settlement may materially prejudice any person who was not represented at the conference but who has a direct or material interest in the matter. (10) If the member of the Court presiding at a conference is unable to continue with the conference, another member of the Court may be appointed to continue and complete the conference. (11) Unless all parties to the proceedings agree to his or her continued participation, the member of the Court who presided at the conference is disqualified from sitting as a member of the Court for the purpose of hearing and determining the matter.” The Rules of Court spell out in more detail the arrangements for conferences, particularly Part 8, which provides: “8.1 A judge, commissioner, master or magistrate of the Court may preside at any conference.” “8.3 Authority to Provide Application and Reports. 8.3.1 Where the decision of an Authority is the subject of proceedings to be referred to a conference, the Authority must, at least two clear business days prior to the scheduled conference date, provide to the Court and to each party to the proceedings, a copy of each of the application documents and any representation, submission or report with respect to the application (including a report by staff of the Authority), submitted to the Authority or any person or Committee acting under delegation from the Authority. Nothing in this Rule derogates from the duty of an Authority to provide notice to the Court of persons who made representations, pursuant to subsections 38(12) and 38(13) of the Development Act 1993.” “8.4 The Conference. 8.4.1 The purpose of a conference is to enable the member of the Court presiding at the conference to assist the parties to explore any possible resolution of the matters in dispute without resorting to a formal hearing and to that end, it is expected that:

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ENVIRONMENTAL COURT PROJECT: FINAL REPORT (a) the issues or matters in dispute, from the perspective of each party, will be aired and discussed openly at the conference, with a view to a fair and reasonable exchange of views in good faith; (b)the party or his, her or its representative(s) attending the conference will attend in good faith, and that the representative(s) will have obtained the authority to discuss, negotiate and authorise a settlement of the proceedings, or agree on such issues or part of the proceedings as may be agreed; (c) each party or his, her or its representative(s), will be prepared at the conference, to discuss its case, identifying the issues it proposes to argue, and the grounds therefor and respond as best it then can to the case of each other party.”

7.11.1 The Court’s approach to conferences There is general agreement that the conference process has proved highly successful. The reasons seem to lie in the nature and history of the provision and the experience and culture that has developed over a long period, and is reflected in the Court’s approach. Practitioners, both planning and legal, together with the community, have developed an appreciation and understanding of, the conference process. The Act now sets out the purpose of the conference. Following lodgement, the Court automatically convenes a conference within three to four weeks of lodgement. By the Rules, the authority whose decision is under challenge is required to provide relevant documentation (“the copy documents”) to the other parties and to the Court prior to the conference. The Court telephones the authority or its representative if the documentation has not been provided within the time frame specified under the Rules, with a view to ensuring that each party has relevant information prior to the conference. The member of the Court presiding over the conference prepares by familiarising himself or herself with the contents of the copy documents. In the conference process, unlike mediation, the member presiding is able to, and does, suggest options for resolving matters in dispute, for consideration by the parties. Since the commencement of the Court, it has been rare for a conference to be dispensed with. This compulsory approach is not widely accepted as a suitable basis for ADR, yet it has been proven in South Australia to have many positive consequences. Notably, it brings the parties together, sometimes for the first time, with the consequence of the issues being articulated, with the assistance of the member of Court presiding. Despite the aspiration in the Rules that parties should have obtained “the authority to discuss, negotiate and authorise a settlement of the proceedings, or agree on such issues or part of the proceedings as may be agreed”, difficulties are still encountered with the representatives of an authority not having instructions to agree to a settlement. However, we understand that local authorities appear generally to have perceived, with the passage of the years, the benefits of the conference process and in cases where they continue to be

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unable to give instructions to their representative to settle at a conference, the conference is adjourned for any proposed resolution to be put to a meeting of the local authority. A further benefit of the conference process has been that a party is able to see the quality and strength of the case of the other party or parties. Many withdrawals of matters, subsequent to the conclusion of a conference, are understood to be as a result of the conference process.

7.12 Special Parties No special rules apply, except in proceedings under native title legislation. Under the Native Title (South Australia) Act 1995, the Court must, in conducting proceedings involving a native title question, “take account of the cultural and customary concerns of Aboriginal peoples”.

7.13 Volume of Business The Court’s workload has not been as heavy as had been anticipated, and the volume of business has not grown over the first three years, as the following tables show. Table 18: matters before the Court 1994-96

Applicant Appeals. 3rd party appeals Building Disputes Applications for Enforcement Orders Complaints (criminal proceedings). Contempt Appeals (from Warden’s Court) SUB-TOTAL Applications to join as a party TOTAL

1994 285

1995 271

2 10 12

4 17 11

369 156 525

353 127 480

1996 250 48 3 10 9 3 2 325 206 531

TOTAL 806 48 9 37 32 4 2 1047 489 1536

Table 19: outcomes Decision of Authority Reversed: 118 Decision of Authority Confirmed: 90 Decision of Authority Varied: 60 Jurisdiction declined: 15 Matters withdrawn: 313 Matters settled at conference: 379 Matters settled through mediation: 5 Applications for Enforcement Orders: 1 granted; 4 refused (matters settled or withdrawn included above)

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ENVIRONMENTAL COURT PROJECT: FINAL REPORT Contempt: 1 not guilty; 3 guilty and fined/suspended sentence with bond. Complaints (criminal proceedings): 23 convicted & fined; 1 dismissed; 6 withdrawn (2 awaiting decision)

Table 20: Appeals to Supreme Court 1994-97

1994 1995 1996 1997 Total

Lodged 14 5 12 2 33

Allowed 4 4

Dismissed 7 2 1

Discontinued 2 3 2

8

10

7

7.14 Decision times The following standards have been adopted by the Court as goals: Lodgement to conference: Conference closure to hearing (single bench): Conference closure to hearing (full bench): Hearing to decision:

within 3 weeks within 6 weeks (8 weeks for country) within 8 weeks (12 weeks for country) no more than 2 months

The Court has performed well against even these demanding standards. In 1995/96 the set time standards were bettered on average, except for full bench hearings in the city where average waiting time from conference to hearing was 11.5 weeks, almost double the target. This discrepancy reflected the desires and availability of the parties or counsel, rather than the availability of Judges and Commissioners. For the larger planning appeals, it may also reflect the economic situation in South Australia where developers have been known to defer spending money on an appeal. Nonetheless, overall, waiting times in 1995/96, from lodgement to final decision for both single member and full bench matters, averaged 12 weeks, which was well within the Court’s targets. In the majority of matters, a written decision is delivered within 3 weeks of the conclusion of the hearing. Full bench matters generally have a longer waiting period for the decision/judgement than do single member matters.

7.15 Final Comment The workload of the Court on average since its commencement, has neither been heavy, nor what was anticipated. There have been a number of reasons postulated for that outcome, all peculiar to South Australia. One of them clearly is the economic situation.

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The Court has been structured to deal with a far heavier caseload, although it is presently operating with three full time Commissioners instead of four. This has allowed it to dispose of cases with such despatch. The Court believes that the increase in business would have to be significant before it would impact on the disposal rates. If lodgements in planning appeals were to increase significantly, then it would be necessary to have the vacant fourth Commissioner position filled by the Government.

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8 Evaluation of the Australasian environmental courts 8.1 Introduction In this chapter we attempt a comparison and an interim evaluation of the Australasian experience. All four of the courts that we have examined in the preceding chapters clearly satisfy our definition of an environmental court, and although there are significant distinctions between them there are also clearly some close parallels. In this chapter we draw together those strands before turning, in the following chapters, to a study and evaluation of the arrangements in England and Wales. Certain comparative data are presented in Appendix 4.

8.2 The parallels We start with the parallels: (1) Each of the jurisdictions has historically had a fragmented permitting system for land-use planning and development, with, in some cases, a number of appeal boards and tribunals with overlapping jurisdictions. It had become increasingly complex over time, and a source of delay and frustration. One of the objectives in the establishment of a specialist court was to provide a unified appellate jurisdiction, in a form that was most likely to command the respect of the parties; (2) Each has an exclusive jurisdiction in relation to land-use and environmental disputes, though in each case, it is the land-use work that predominates. There seem to be two reasons why this is so. The first is simply the volume of regulatory activity involved in land-use. Because the basis of land-use regulation in all of these jurisdictions has historically been on the basis of a zoning system, much of the dispute resolution still takes place at the stage of formulation of plans and policies. This is particularly evident in New Zealand, where the upsurge in maters coming before the Court in 1996 and 1997 was due primarily to the volume of objections received to district plans and regional policies. The second reason why the emphasis is so heavily on land-use is that it is in this context that much environmental evaluation is undertaken. Environmental assessment requirements now form part of the appraisal process for policies and major projects in all of the jurisdictions. More, there are substantive requirements on the courts in Queensland and New Zealand to pursue the sustainable development objectives of the legislation which confers jurisdiction upon them. Review of the granting of consents for discharges to the environment is, by comparison, a limited part of the work of the courts. For the New Zealand court it is part of its integrated jurisdiction, and environmental discharges are regulated at first instance by the same local authorities who have responsibility for resource management consents for all other activities. Indeed, there is a fundamental debate still within New Zealand as to whether, under resource management, there is any

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lawful basis for the regulation of land-use otherwise than in terms of environmental impact. For the other jurisdictions, environmental discharge review cases come to the courts on appeal from a State agency rather than a local authority, and there is no functional integration with land-use regulation. (3) Planning and development issues have tended to be a highly political at local government level, with widely held public suspicion of political cronyism and even corruption. The political allegiance of some councillors has also evidently been more persuasive than their commitment to sustainable development. There are echoes of this concern still in the proposals currently under consideration in New Zealand for councillors to be relieved of their responsibilities for first-instance resource management hearings and to be replaced by locally appointed commissioners. There has been rapid urbanisation in each of the jurisdictions, but relatively weak local government. This has reinforced the desire to have appellate machinery in the hands of a court, distanced from the local political battlefield and distinctly independent, rather than a politically accountable Minister. In terms of their populations and the closeness of relationships between leading political and business figures, these are each relatively small jurisdictions, and there is perhaps less of a cultural tradition of trust for national politicians and their civil service as there is in the United Kingdom. (4) Each of the jurisdictions previously had one or more tribunals with that appellate responsibility, and the move to environmental courts has been mainly on the basis of retaining those bodies and their personnel, but under a new name and with extended responsibilities. The courts are more the result of evolution than revolution; (5) There has been a process of exchange of experience between the jurisdictions. The New South Wales Court has clearly been a model for all the jurisdictions that followed, but the others have not simply transposed it into their own jurisdictions, but have adapted and modified it to suit local circumstances and perceived priorities. In particular, none of the other jurisdictions has established a court at the level of the High Court, preferring the District Court level; (6) The move to environmental courts has coincided with the move towards the integration of development permitting. New Zealand’s resource management legislation has set a precedent in the region, and it is starting to become relied upon as a model for the other jurisdictions. Its influence is apparent in the Queensland Integrated Planning Act 1997, even though it lacks the formal integration of land-use with environmental considerations; (7) Case management: a powerful feature of a specialist environmental court is its ability to run an effective case management system. The New South Wales court led the way with this initiative, particularly through its use of regular call-overs and case conferences. Adjournments are rarely granted: a list of available hearing dates is available at callover, and the parties must use them. The Court is also strong on requiring parties at a hearing to keep to schedule. Other courts have followed, often under pressure to expedite the dispatch of business. Case management has not proved initially popular with practitioners because it requires that they take a

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ENVIRONMENTAL COURT PROJECT: FINAL REPORT similarly strategic view of the progression of cases coming forward to hearing, but once that has been accepted and absorbed as a professional responsibility it has enabled a more efficient approach all round to the handling of matters before the court.

(8) Enforcement through civil orders: this is a important common theme with all the courts examined in the case studies, not least because it is wholly absent from the arrangements in England and Wales. In each of the jurisdictions, the Court may be moved by “any person” to issue an order to secure compliance with environmental law. There is a complementary power in Queensland for the Court to issue a declaration. In New South Wales in particular, the use of this simple civil enforcement mechanism has proved highly effective in the hands of a court willing to take a robust stance on its use and applicability, and a real alternative to criminal proceedings. Moreover, it has proved an important fulcrum for open access to the court, and removing the State’s monopoly on enforcement of environmental law. (9) The position of the court in relation to Government policy: the common pattern in the four jurisdictions is that the role of the State in land-use policy is weak by comparison with the highly centralised system in England and Wales. In each of the jurisdictions there is a Minister with responsibility for planning, and with some supervisory powers over the formulation of plans and policies by the local authorities. However, in New Zealand the Minister’s role is marginal. There is a call-in power, and a power to issue policy statements in relation to certain issues of national importance, but no function in relation to the content of plans and policies drawn up by the local authorities. The relevant powers of central government are also split between ministries, with the Minister for Conservation having, if anything, a stronger basis for decision-making under the legislation than the Minister for the Environment. Even where call-in is exercised, a right of appeal remains to the Environment Court. This means that the role of supervising plans and policies, in securing that they mesh with other tiers, and balancing their requirements in light of public objections, rests with the respective courts and not with the Ministers. (10) Alternative dispute resolution: ADR is now well integrated into the procedures of all the courts. The motives for its introduction have been mixed. There is a genuine belief in its efficacy in delivering outcomes which carry the assent of the affected parties, and that this is a worthwhile goal in itself. It is also seen as a means of reinforcing case management practices, by producing quicker settlement and avoiding hearings. And it provides a new role for the commissioners, given training, to bring their professional expertise to bear on assisting and perhaps guiding the parties to a settlement which they can ensure will also meet public interest objectives and not simply result in a bargained outcome. However, there are some important differences between the courts in how ADR is managed. The South Australian Court is the only one where the Court, as a matter of course, convenes a conference of the parties presided over by a member of the Court. In New South Wales, it was originally the practice to hold a conciliation conference in every case. However, practice has changed, and the position now is that a conference is held only if both

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parties in a matter within Class 1 or 2 of the Court’s jurisdiction request it. There seems to be no formal provision for conferences in a civil enforcement application. In Queensland, the practice has been that although the Court’s rules provide1 for the holding of without prejudice conferences, once the Court has ordered a conference it is for the parties to organise and supervise it. It is not the practice for a conference to be supervised by a Judge on a without-prejudice basis, despite the greater efficacy that this could bring to the system. An order is only made on application, and the organising of such a conference is left to the parties. In New Zealand, power is conferred for the Court to require the parties to attend a conference presided over by a member of the Court, at which the member may make orders or give directions with respect to the hearing of the matter2. The Court may, for the purpose of encouraging settlement, conduct mediation or conciliation, either of its own motion or upon request, with the consent of the parties3.

8.3 The differences Despite these areas of common practice, the Australasian courts are not simply clones one of another. There are some important divergences in practice between them: (1) Status of the Court: all of the Courts except New South Wales are established at the level of the District Court, rather than the High Court. The comparable level of jurisdiction in England and Wales would be the County Court. In New South Wales, the level is that of the Supreme Court (equivalent in England and Wales to the High Court). There are conflicting views as to the significance of this choice. There is a symbolic component to it: there is a view that the status of the Court reflects the importance that a society attaches to environmental law itself. This is a view which may appeal to lawyers whose practice is in this area, not necessarily from a sense of self-importance but as a means of highlighting the significance of the issues often involved in environmental suits, and their complexity by comparison with work customarily undertaken in the District Court. The jurisdictional distinction in civil work is usually drawn primarily in terms of the monetary amount of the claim involved, and the stakes in a matter coming before an environmental court will often be far higher than that limit. But it has clearly not been the primary consideration in each of these jurisdictions when the courts were established, and the status of the NSW court appears to be more an historical anomaly than a considered decision based upon the importance of the work it was to undertake. Perhaps the most significant consideration has been that, in each case other than NSW, the legislature was converting an existing appellate tribunal into a court. That meant that the most straightforward transition was to District Court status. To establish the court at a higher level would have required the appointment to it of new Judges at that level rather than to have simply continued the appointment of existing tribunal members. In New Zealand, for example, the members of the Planning Tribunal already had a 1

Rule 18(4A) provides that the Court may order on an application for directions that the parties to the appeal confer out of court for the purpose of giving consideration to the resolution by agreement of any issue arising in the appeal. 2 Resource Management Act 1991, s.267. 3 Ibid, s.268.

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ENVIRONMENTAL COURT PROJECT: FINAL REPORT status within the legal hierarchy equivalent to a District Court Judge. And it is true that the work of each of the courts covers a remarkably wide range with, at the bottom end of the scale, work of relatively low financial value and little complexity. Perhaps the most significant lesson is that an integrated environment court cannot readily be compared to other forms of conventional jurisdiction, which is one reason why its proponents argue for a fresh approach. If it is a wholly different model, then the only relevance of where it sits in the judicial hierarchy is in terms of the court to which appeals from it decisions will lie. In the recent reforms in Queensland, the “re-tribunalisation” of the Planning and Environment Court was an option that was considered by the State Government, but strongly—and eventually successfully— opposed by the legal profession.

(2) Jurisdiction: there are some interesting divergences in jurisdiction. The most significant is with the New South Wales Court, which has a jurisdiction which includes criminal matters and judicial review. The criminal jurisdiction may be less important than at first sight appears. The absence of a criminal jurisdiction in the other courts has not meant that the criminal aspect of environmental protection has been ignored. Instead, there have been workable arrangements devised which ensure that the environmental judges sit separately in their capacity as District Court Judges to hear criminal matters. This approach retains a uniform court structure for criminal work, but ensure that the major criticism of allowing environmental crime to be tried in general courts—the lack of judicial expertise—is properly addressed. It also maintains a strict divide between civil and criminal process. The enforcement role of the environmental courts has its roots in civil process, which seeks remedial rather than punitive remedies. The difference in judicial review jurisdiction is the more conceptually and practically significant. (3) the use of non-legal expertise: Commissioners and assessors are used in three of the models, but not in Queensland. They are, however, used in different ways. We detected some concerns, which may be transitional problems, in relation to the quality and expectation of some commissioners, particularly those holding part-time appointment and for whom there is a risk of conflict on interest. All three courts make use of commissioners in multi-court sittings, and in those cases the role of the Commissioner is reasonably clear. Although it is for the Judge to preside over the proceedings, the commissioner is a full member of the court and a full participant in its proceedings, subject to the chairmanship of the Judge. But experience differs as to the expectations of commissioners sitting alone. In New Zealand, it has recently become possible but only with the consent of all the parties and at the direction of the Principal Judge, and it remains rarely used. In New South Wales, assessors have full jurisdiction in relation to Class 1 matters, and their sitting alone does not require the consent of the parties. Hence their role is more direct and more hands-on, and we detected a stronger sense of common purpose in New South Wales between the Judges and the Assessors than was apparent in the other jurisdictions. In the three courts which have commissioners or assessors, they have become the principal participants in court-promoted ADR. One of the features of the New Zealand and

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New South Wales courts is their power to call their own expert witnesses, but it is noteworthy that in practice it is not used. (4) There is also a different appointment process, and different conditions of employment, for the respective offices. Not only is the NSW office a more secure position, as a full time (rather than 3/4 time) relatively well paid career, but it also results from a more transparent process (which in itself may lend the position more security). The New Zealand system is gradually improving, but at present some commentators tend to wonder what the Commissioners actually do. It seems that the key lies in single member assessor sittings which should, over time, inspire confidence in their abilities. At present that confidence appears to be lacking in users of the court. In addition, any such position should be carefully examined in terms of job security (to ensure high quality applicants) and terms and conditions of appointment. (5) the informality of proceedings: there are varying degrees of formality in each of the four courts. The most uniform approach is that of the Queensland court, where counsel are wigged and gowned, and commissioners are absent. The greatest variety is probably with the New South Wales court which, by reason of its flexible use of commissioners, is able to offer highly informal proceedings in appropriate cases, and which strives to assist unrepresented parties both in making applications to the court and in proceedings before it. It is noteworthy that this should have proved possible in a court of the status of the Supreme Court, where practice tends generally to be more formal than in the District Courts. In other classes of the Court’s jurisdiction, such as judicial review, the process is as formal as in the Supreme Court generally. A similarly flexible approach is apparent in New Zealand, though the Court has not always found the Bar as flexible as it would wish in this respect. The South Australian court has the advantage of smallness, which perhaps more readily allows for an atmosphere of directness and openness. (6) in the time taken for dispatch of business: dispatch times for routine appellate work are impressive throughout the four courts, aided by greater emphasis on effective case management and use of ADR techniques. Where differences become apparent is in connection with hearings into major projects and into plans and policies. Here the jurisdictional differences become apparent. The New Zealand court, for example, hears complex policy matters which in New South Wales would go instead to a commission of inquiry. The volume of this work, and the demands it makes on sitting days, has had an adverse effect on its throughput overall. (7) the cost to participants: court costs in all the jurisdictions are nominal. The courts are funded primarily from taxation, not from user fees. Hence there is no financial barrier to open public access, and this arrangement matches the openness of the legal access that is enshrined in the legislation in each case. But this advantage is capable of being more than offset by the high costs of legal representation and expert evidence. The technicality of the law and the issues makes it difficult for any but the most articulate groups and individuals to participate properly. Judges and commissioners can go a long way to offset these effects in the way they handle

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9 England and Wales: Introduction 9.1 Introduction Having completed our survey of environmental courts in Australasia, we turn now to consideration of the feasibility of establishing such a jurisdiction for England and Wales. The means through which environmental, including land-use, appeals are determined in England and Wales are quite different from those in the four Australasian jurisdictions that we have looked at in detail. The reason for this lies in the historical evolution of administrative decision making in England and Wales, and in particular the relationship that has evolved over time between Parliament, Executive Government and the courts. As we shall see, the Planning Inspectorate is the central body in England and Wales for determining merits appeals against planning decisions of local planning authorities, and against regulatory decisions of the Environment Agency. It has many related powers, including power to determine such matters as contested compulsory purchase orders, rights of way orders and wayleaves. Yet planning inspectors are members neither of a court nor a tribunal; they have no power in respect of civil enforcement, nor any criminal jurisdiction. There are, we suggest, two powerful reasons why this is the case. The first is the pragmatic way in which the Inspectorate has evolved. Although environmental legislation in England and Wales has undergone radical change in the past decade, that revolution has not spread to the arrangements for determining appeals. The second, related, reason, is the high level of regard that exists for the way in which the Inspectorate has performed. Far from considering fundamental reform of the institution, Government’s approach has been to assign to it further environmental responsibilities. In this chapter, we explore the process of historical development which has led to the present-day role of the Planning Inspectorate. In the chapters that follow, we outline and evaluate that role and consider how far it resembles the role of an environmental court; we then outline and evaluate how other environmental disputes which are in other countries assigned to environmental courts are handled in England and Wales, and we then turn to examine the feasibility of introducing an environmental court in England and Wales. In the brief history that follows, we examine the evolution of the current arrangements through five phases of development. These run from the period up to the middle of the 19th century when private Parliamentary legislation was the only means available to promoters of schemes who required the legal capacity to override private rights, through to the establishment in 1992 of the Planning Inspectorate as an Executive Agency in the Department of the Environment and the Welsh Office, and the enactment in the same year of the Transport and Works Act 1992, which marked a further chapter in the transfer of Parliamentary power to the Executive.

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9.2 A brief history of land-use decision making The present structure of decision-making in England and Wales is far more the product of evolution than of rational design. Its main features were established during a period when central executive power in England and Wales was relatively weak, and Parliamentary legislation was the only means of authorising interference with private rights, particularly the private property rights that were established and protected under common law. It required deliberation at a national level on proposals that had only local consequences, and it involved a system of hearings and investigations to adjudicate between competing claims.

9.2.1 Phase 1: Parliamentary legislation The 19th century in England and Wales saw the development of major infrastructure through the country. The linear character of the canal, railway and road networks that were developed required inevitably the exercise of coercive powers. The landowners could not be expected to co-operate unconditionally in surrendering land to the greater commercial enterprise of the railway companies or the turnpike trusts, and the only mechanism available to the promoter of such a scheme was to secure the necessary powers under Parliamentary legislation to acquire land compulsorily, subject to an obligation to pay compensation to the owner, and to construct and operate a railway without being liable to action for nuisance from those with land alongside the route. For the previous two centuries it had been local authorities who alone had the willingness or ability to promote improvement works, such as harbour or river improvements, and who sought Parliamentary powers not only for the works themselves but also to levy a special rate on ships to meet the cost. The model for private bill legislation was the series of measures that were enacted from the beginning of the 17th century for enclosures, a process that gathered pace in the 18th century with as many as 3,360 enclosures authorised under the reign of George III.1 Parliament enacted in 1801 the Enclosure Act, which was a “clauses” Act, to which subsequent private bills could refer, thereby reducing their length and complexity. Nonetheless, each enclosure proposal required specific approval of Parliament. Private bill legislation was also the only means available through to the mid 19th century for local authorities to improve the conditions of their areas, under Town Improvement Acts; for the construction of canals, under legislation that started in the late 18th century; the railways, for which private bill legislation started in 1801 to sanction a railway from Wandsworth to Croydon using horse power; for tramways, which were introduced in London in 1859 without Parliamentary powers, but subsequently sanctioned by a public measure, the Tramways Act 1870; for gas lighting, with the enactment of the Gas Light and Coke Companies Act 1810; and water supply. The outcome was that by the mid-19th century private and local legislation comprising the great bulk of all Parliamentary legislation. The procedures for its enactment were complex. The promoter of private or local legislation was required to lodge a petition, in either the House of Commons or the House of Lords, and those who objected to the scheme could then lodge a petition against. After a debate on the floor of the House, the petition would be referred to a Select Committee, which would take evidence on the Bill. Upon the conclusion of the proceedings in one House, the matter would move to the other House, and the process would commence all over again. Both Houses of Parliament treated private bills as part of the essential business of the legislative function which the nation expected them to perform: 1

Clifford, F, The History of Private Bill Legislation, Vol 1, p 21.

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ENVIRONMENTAL COURT PROJECT: FINAL REPORT “For it is no less the duty of Parliament to consider what we are accustomed to designate private bills than those which we call public, though enactment which regulates the whole railway, canal, and tramway traffic of the Kingdom, the sanitary condition, and gas and water supply of the population can scarcely be termed private.”2

The procedures were complex, and the volume of work enormous. Until the early 19th century, evidence on private bills was frequently heard at the Bar of the House of Commons. In due course, this responsibility was transferred to committees of the House, but in the early years the Committees in most cases consisted of the whole House, because all members of the House who chose to were entitled to attend and vote. Only in 1840 did a process of assigning members to committees on private legislation emerge, but they still remained unwieldy in size, and in Clifford’s words “they were also to a great extent partisan assemblies, composed of friends of the bill or members pledged to oppose it”3. A return of the total number of Acts passed in each session from 1801 to 1884 shows the dominance of local, personal and private Acts over public Acts throughout that period, though with fluctuating proportions in each year. In no year did the number of public Acts exceed 200, and there was a steady decline in their numbers from 1867 (146) to 1884 (78). But in those same two years there were respectively 209 and 2262 local and personal Acts. For the whole of the 85 years, the total was 9,556 public Acts; 14,774 local and personal Acts, and 3,723 private Acts.

9.2.2 Phase 2: Experiments with inspectors Much of the time consumed in Parliamentary proceedings on private and local legislation was taken up in reviewing evidence submitted to the House by petitioners. Members of Parliament were expected to review the facts for themselves, on the basis primarily of oral evidence. In a series of reforms occurring in the middle of the 19th century, attempts were made to shift some of the burden for this part of the operation from Parliament itself to independent inspectors or to Government Departments. From 1846-51, the House of Commons reviewed a number of different ways in which the load of private and local legislation might be reduced. One of the objectives was to reduce the time consumed in Parliamentary proceedings in ascertaining the necessary facts upon which a decision could be based. The possibility that the factual matrix for decisions might be established outside the House, through the holding of public local inquiries, became a popular notion. A Commons Committee of 1846 recommended “in order to elicit the facts of each case with greater certainty and economy, and also save the time of Committees” there should be local inquiries made by a Department of the Government, before certain classes of private bills were considered by Parliament. Legislation was passed in the following session4 which made special provision in the case of all bills promoted for the establishment of water works, or for draining, cleansing, paving, lighting, or otherwise improving any town. In such a case, the Commissioners of Woods and Forests were required to send inspectors to hold a 2

Article on private bill legislation: Fortnightly Review, August 1885; Mr Pemberton MP (quoted in Frederick Clifford, A History of Private Bill Legislation, Butterworth 1887 (reprinted Frank Cass & Co, 1968) Vol 2. 3 Op cit. Vol 1, p 256. 4 Local Acts (Preliminary Inquiries) Act 1847.

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local inquiry. The Commissioners would then report to Parliament in each case. Similarly, in relation to bills affecting any port, harbour, tidal water or navigable river, a parallel obligation fell on the Lords of Admiralty. In this case, however, the Admiralty had overriding power: if the result of the Inspector’s inquiry was a finding that the bill might prejudicially affect tidal waters, the Admiralty would simply withhold the consent of the Crown, and the matter would lapse. In other cases, however, the reports that were prepared by the Departments on the basis of local inquiries conducted by Inspectors were to be laid before the Committee on each bill. Using inspectors was not a widely popular move: “. . . if Parliament surrendered this jurisdiction, there would be substituted a little army of inspectors or other officials, necessarily not the highest in their respective professions, with the addition of a well-paid court or courts, in the place of unpaid tribunals [Parliamentary committees] whose judgements command general confidence and respect, and whose constitutional province it is to decide whether changes in the law are expedient, and whether, in view of expected public benefits, private interest shall suffer, it may be, irreparable injury.”5 Moreover, the experiment of requiring inquiries to be made into private bills in these two categories, under the 1847 Act, proved disastrous. The major difficulty was that the findings of the inquiry were not binding on the Parliamentary Committees, and two consequences followed from this. First, there was a refusal by either promoters or objectors to take the public local inquiry seriously. Each knew that the matter would be played out again before the Parliamentary Committee, and each was anxious therefore to disclose as little as possible at what seemed to have become a troublesome preliminary stage. As Clifford puts it: “One obvious abuse was that opponents refused to state their objections to the Inspector, and then went before Committees with the advantage of knowing all the promoter’s case, while they had not disclosed their own”.6 Secondly, and related, the Parliamentary Committees themselves refused to place great weight on the Inspectors’ reports. In no single instance was any such report received by a Committee as proof of any matter. The inquiries therefore became empty formalities. In 1848 the legislation was repealed, and the two Departments were given power to dispense with the requirement. Clifford gives an example of the largely destructive character of the preliminary inquiry process. It came with the promotion of a Bill in 1847 by Liverpool Corporation to supply the city with water from the rivers Douglas and Darwin, both flowing into the Ribble. It was proposed to impound water from the streams, to carry out extensive works and to construct reservoirs, and then to bring the water to Liverpool from a distance of about 32 miles. At the preliminary inquiry, there were 20 sets of opponents each separately represented. They refused to state their case, and parties interested in water rights declined to specify the compensation they claimed, or even to produce plans showing the position of their works. They nonetheless cross-examined the witnesses presented by the promoters. The inquiry took five days, at a cost to the Corporation of £2,300. The Corporation saved money, however, by not bringing its greater number of scientific witnesses from London. The Inspector’s report was, on the whole, unfavourable, but the Corporation nonetheless persevered with their Bill, and in the House of Commons produced the same witnesses plus 5 6

Clifford’s Private Bill Legislation, Vol 1, p 261. Clifford, op cit., Vol 2, 891.

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others. The Committee went into the case as though there had been no local inquiry at all, and after proceedings which lasted five weeks and cost £24,000, sanctioned the Bill. The procedure was reviewed again by a special Commons Committee in 18507 which concluded that local inquiries had been on the whole unsuccessful, and had simply added a further expense and formality to the Parliamentary process without at all shortening the proceedings of Committees. The Committee concluded: “In order to render any system of local inquiries effectual, it would be necessary to delegate to other tribunals much of the authority of Parliament. At present the Inspector’s position is anomalous, and the exertions of the party to appear before him are without results. If his functions are to be useful the evidence taken before him must be made final before the Committee as regards the point to which it refers. Your Committee do not recommend to the House so extensive a delegation of its authority. While they are of opinion that every facility should be given to the public of availing themselves of the operation of general Acts for local improvements, yet when an application is made to Parliament for extraordinary powers, your committee believe that no tribunal is general so satisfactory as one constituted by Parliament itself”. Hence, in 1851, Parliament discontinued all preliminary inquiries by the Commissioners of Woods and Forests, although the Admiralty powers in relation to Bills interfering with tidal waters continued. Parallel to this, however, was a requirement introduced in 1846 that private Bills should have some Departmental supervision. The Board of Trade had for many years had a general supervisory jurisdiction in relation to Bills for docks, harbours, piers, canals, navigations, gas and water. Railway Bills came under the Railway Department of the Board of Trade. The purpose of this jurisdiction was to allow the Department to look closely at the draft Bill to see whether it contained anything of a general nature which would injuriously affect public interests, and to report accordingly to Parliament. This process was reinforced in 1858 when the House of Commons resolved that, whenever a Committee dissented from the Departmental recommendations on a Bill, they must state their reasons to the House. Hence, by 1860, for the bulk of local and private legislation in Parliament, a modus operandi had been established between the Executive and Parliament in which the Executive was entitled to furnish its recommendations on private legislation, and to have them taken seriously by the Parliamentary Committees. However, all attempts to transfer to the Executive the function of investigating the factual basis upon which the claim for legislation was made had been abandoned. That investigation remained with Parliament, and for private Bill legislation continues to do so. Two things have changed dramatically since that time. First, the transfer of substantive authority from Parliament to the Executive in relation to approval of works proposals that previously required Parliamentary sanction, so that today Parliament’s involvement is quite rare; and second, the conferment on the Executive of wholly new powers, such as those under town and country planning legislation. 7

Commons Committee on Local Acts (Preliminary Inquiries), 1850

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9.2.3 Phase 3: Provisional orders A major change in the balance of responsibility between Parliament and the Executive started in relation to sanitation in urban areas with the Public Health Act 1848, which was intended to strengthen the powers of local authorities to promote public health in their districts, and the Local Government Act 1858. The 1848 Act was passed at the height of the worst London cholera epidemic, with a death roll of 14,000, and contained a provision requiring a public inquiry to be held if required by one-tenth of the ratepayers, in an area where the death rate exceeded 23 per thousand.8 There were new powers to bring water and sewerage to urban areas, and the legislation gave local authorities power to promote a draft order to carry through their objectives. Private Acts started to give way to Provisional Orders, and provided for objections to be made, originally to the local justices, but in due course to the Local Government Board, which was formed in 1871. A Provisional Order requires, first, the giving of public notice in two successive weeks in local newspapers. Where an objection was made, the Board were required to hold a local inquiry, and to permit all persons interested to attend and to make objections. Their inspectors had wide ranging powers. They could administer oaths, and require the attendance and examination of witnesses, and the production of papers and accounts. The Board also had a wide ranging power under the Public Health Act 1875 to make “such inquiries as they see fit in relation to any matters concerning the public health in any place”, or any matters with respect to which the Act required their consent. The provisional order would then be submitted to Parliament for confirmation, but in effect, parties who were dissatisfied with the outcome of the preliminary inquiry, could avail themselves of the further appeal to Parliament which the Act provided. As Clifford records, in such cases the local inquiry remained open to all the objections which had led to the repeal of the Preliminary Inquiry Act, in particular that it would involve potentially three expensive contests instead of one or two, and did not save any Parliamentary time. The same measures were nonetheless carried forward to the Local Government Act 1888; and again, with an important modification, to the Local Government Act 1894. The modification was the conferment of a power on the Board itself to confirm an order, rather than Parliament. The provisional order procedure was to become the standard procedure under a number of different types of legislation. In 1936, it became the substitute in Scotland for Private Bill legislation. By the beginning of the 20th century, Parliament was still heavily involved in decision making on issues which today would be decided by Planning Inspectors. The provisional order procedure had strengthened the role of Government Departments, and had introduced the investigative processes of a public local inquiry, as a means of extending powers to local authorities. But the character of the provisional order procedure was that it was conducted on behalf of Parliament, rather than as a separate area of activity. This model was continued with the enactment of the Housing, Town Planning etc Act 1909. Under that Act, local authorities were empowered to prepare planning schemes, and to acquire land compulsorily for housing and town planning purposes. Although their subject matter was novel, the ancestry of the provisions was demonstrated by the continued involvement of Parliament through arrangements roughly equivalent to contemporary negative resolution procedure. No scheme took effect until approved by the Board, and 8

R E Wraith and G B Lamb, Public Inquiries as an Instrument of Government, (George Allen & Unwin, 1971) 23.

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before issuing such approval the Board must advertise notice of their intention to do so. If any person interested then objected, in the prescribed manner, he draft of the order had to be laid before each House of Parliament, and if either House presented an address to the Crown against the draft, or any part of it, no further steps were to be taken on it. Once approved by the Board, a town planning scheme was to “have effect as if it were enacted in this Act”9. However, the procedure was The powers of the Board and of local authorities were potentially draconian: any building or work contravening a town planning scheme could, following proper notice, simply be pulled down. The Board had final say, and the primary mechanism for dispute resolution was prescribed as arbitration10. Indeed, where arbitration was not specified as the appropriate course, the Act gave them the “option to determine the matter by arbitration or otherwise”11. At the same time, the Act gave the Board general power “to cause such local inquiries to be held as the Board see fit”, and allowed for the cost to be billed to the “local authorities and person concerned in the inquiry, or by such of them and in such proportions as the Board or confirming authority may direct”12. It appears that the Board frequently used this power, and the Planning Inspectorate today claims its ancestry in the corps of inspectors established by the Board in 1909 to undertake these tasks.13 The great bulk of the work undertaken by the inspectors would likely have arisen from Part I of the Act, in relation to the making of closing orders and demolition orders, in respect of houses deemed unfit for human habitation, under powers formerly conferred by the Housing of the Working Classes Act 1890, and strengthened in the 1909 Act. Aggrieved landowners were given a right of appeal to the Board14, which was obliged to require in its rules that the Bard would not dismiss any appeal without having first held a public local inquiry15. It is interesting to note that, in parallel to the growth in popularity of the provisional order, successive attempts were made throughout this period to introduce a stronger judicial element into decision making, both within Parliament and outside it. Proposals were put forward for the introduction of a judicial tribunal within Parliament for dealing with the factual and policy issues. This was strongly opposed in 1853, by Mr Booth, who had been Speaker’s Counsel and afterwards Secretary of the Board of Trade, in the following terms: “For all open questions, i.e. where the principal of decision cannot be reduced to a law, the Committee is, I think, better than a judicial tribunal. Its fluctuating character is not altogether a disadvantage. It varies with, and keeps progress with, the times. The public will permanently acquiesce in no other. A judicial tribunal, proceeding strictly on precedent, would be apt to stereotype the policy of a bygone age. One great recommendation of a judicial tribunal has been supposed to be the uniformity and consistency of its decisions. The Liverpool and Manchester, and the London and 9

Housing, Town Planning, Etc. Act 1909, s.54(5). Ibid., s.57(3). Arbitration was also to be the mechanism for mediating the interesting power conferred by s.58(3) which allowed a local authority to recover from landowners one-half the amount by which their land had increased in value by the making of any town planning scheme. 11 Ibid., s.62. 12 Housing of the Working Classes Act 1890, s.65, extended to planning matters by s.63 of the 1909 Act. 13 Planning Inspectorate Executive Agency. Statistical Report 1995-96, para 2.1. Although it the Planning Inspectorate, to this day the full title of the Inspectors’ grades remains that of Planning and Housing Inspector. 14 Housing, Town Planning &c Act 1909, ss. 17(6); 18(4). 15 Housing, Town Planning, &c. Act 1909, s.39(1)(b). 10

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Birmingham Railway Bills were, I believe, both thrown out by Committees on their first introduction. Where would the railway system now have been under a course of uniform judicial decisions? A preliminary inquiry by officers on the spot, or by a judicial tribunal, who are not to have the final decision of the case, would, I think, in most contested cases, be merely adding to expense.” Other attempts were made through the 19th century to establish a fixed tribunal, but all were rejected by a Parliament jealous to preserve its own functions in relation to law-making. That extended even to a refusal to combine the Commons and Lords Committee stages on Private and Local Bill proceedings, which continues to this day. The second line of attack was in relation to the procedures adopted by Government Departments themselves in relation to provisional orders. To the extent that the inquiry process, followed by the decision of the Department, resembled a dispute before a court of law, it was not surprising that objectors were anxious to argue for similar procedures and protection as they would find in a judicial tribunal. However, the courts were in due course to reject that approach. In the leading case, Local Government Board v Arlidge16 the House of Lords rejected the proposition that court-room rules of fair procedure should be imposed equally upon Ministers as upon judges. Lord Shaw of Dunfermline insisted that: “. . . that the judiciary should presume to impose its own methods on administrative or executive offices is a usurpation. And the assumption that the methods of natural justice are ex necessitate those of courts of justice is wholly unfounded”. The decision reinforced the essentially administrative and political character of the processes that had been established through the 19th century. The legislature had conferred powers on the Executive, acting under the shadow of Parliament, rather than upon the courts. Although the Departmental inquiry had the potential for providing a swifter, cheaper and less formal forum for the settlement of disputes, that had never been the purpose for favouring it over the courts of law. The principal objective was to maintain decision making within a policy framework that could be overseen by Parliament, rather than to transfer it into a rule-bound process operated through the ordinary courts of law.

9.2.4 Phase 4: The post-war welfare state The next phase of significant change was to come in the immediate post-war era, building upon changes that had already started to occur in the 1930s. Their principal characteristic was the transfer of power from local government to central government. This process of centralisation had been evident in pre-war legislation like the Trunk Roads Act 1936, which created a national road system by transferring highways responsibilities from local authorities to the Ministry of Transport (conferring on him a power to hold local inquiries in connection with his new function). By 1946 his responsibilities were to include keeping under review “the national system of routes for through traffic in Great Britain”.17 So too, local responsibilities in respect of social security (which involved the repeal of the Poor Laws, and their transfer to central government with the National Assistance Act 1948) and in relation to trading operations such as electricity, gas and water. These transfers meant that there was no longer any place for the traditional relationship between local government and Parliament, intermediated by a Government Department through the provisional order 16 17

[1915] AC 120. Trunk Roads Act 1946, s.1(2).

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procedure. Instead, the Government Department was itself now to become the initiating authority, and the provisional order procedure was to be superseded by a process in which a Government Department both initiated and adjudicated upon proposals for significant change, subject normally to nothing more than the submission to Parliament of a draft statutory instrument for approval, under negative or affirmative resolution procedure. Most significant amongst these measures, for the purposes of our present study, were the New Towns Act 1946, and the Town and Country Planning Act 1947. The New Towns Act 1946 empowered the Minister of Town and Country Planning to designate an area as a site of a new town, and to use powers of compulsory acquisition to gain title to land in the area for the purpose of carrying through the new town plan. Under 19th century legislative arrangements, such powers would not have been conferred by Parliament upon the Executive, but would have required the promotion of a Private Bill or a provisional order. The 1946 Act transferred significant powers to the Executive, and removed entirely the former power of Parliamentary investigation and approval. The designation order was to be promoted by the Minister, was to be inquired into by an Inspector appointed on the Minister’s behalf, who was to report in turn to the Minister. The next stage was for the Minister to approve the draft order, with or without modifications, or to reject it. There was no requirement even to submit a statutory instrument to Parliament for approval. The legislation confirmed that the conflicts which arose from its application, particularly between national aspirations and their local impact from site designations, was a matter exclusively for the Minister to resolve, and that the touchstone of his decision was to be solely the political rationality of democratic accountability. In the face of such wide ranging powers, the courts were left almost wholly unable to intervene. An example of the process is the designation of the new town of Stevenage in 1946. When the Minister of Town and Country Planning (Mr Lewis Silkin) went to Stevenage that year to address a public meeting, he met with strong opposition, which doubtless induced him to assert very strongly the ambitions that he intended to carry through, as the following contemporary report demonstrates: “I want to carry out a daring exercise in town planning - (jeers). It is no good you jeering: it is going to be done - (applause and boos). (Cries of “Dictator”) . . . the project will go forward. It will do so more smoothly and more successfully with your co-operation. Stevenage will in a short time become world-famous - (laughter) . . . while I will consult as far as possible all the local authorities, at the end, if people are fractious and unreasonable, I shall have to carry out my duty - (voice: Gestapo!)”.18 The New Towns Act 194619 required a public local inquiry to be held, before the Minister could confirm the necessary designation order. Opponents of this scheme claimed that the clear commitment that the Minister held to it, as demonstrated by his comments in 1946, prevented him from applying an unbiased mind in “considering” as he was required to do the report of the person by whom the inquiry was held before making the order. The High Court upheld that challenge on the ground that the Minister must act in a quasi-judicial manner and 18 19

The report comes from the judgment in Franklin v Minister of Town and Country Planning [1948] AC 87. Schedule 1, para 3.

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in accordance with the rules of natural justice. But the Court of Appeal and the House of Lords bowed to the inevitable. To have held otherwise than that the Minister was not disabled by any potential political or other bias, would have been to hold that the legislation had been rendered unworkable. They ruled therefore that the Minister’s function was purely administrative, and his only duty was to “consider” the report of the Inspector following the public local inquiry. At that time, Inspectors’ reports were not made public, so it only became publicly known 30 years later that the Inspector had actually recommended to the Minister that the Stevenage project should be delayed, on the grounds that the objections that had been made at the inquiry were in his view “inescapable”20. But the Minister overruled the Inspector’s recommendations, and the new town adventure at Stevenage proceeded (and indeed has recently opened a fresh chapter with proposals for large-scale private sector housing development to the west of the town). So too with the closely related Town and Country Planning Act 1947. Where, under the 1909 Act, the development schemes prepared by local authorities were required ultimately to go to Parliament for approval, the new development plans were to go to the Minister for Town and Country Planning for approval. Local authorities were given powers to grant or refuse applications for planning permission, and the appeals from their decisions again were to go to the Minister. Thus, Parliament had transferred to the Minister all of its functions in relation to overseeing the use and development of land, and was left with relatively slender powers of supervision of the ministerial exercise of those functions. Certainly, Ministers could be held to account through the emerging 20th century versions of ministerial responsibility, but, as Richard Crossman demonstrated in 1967, it was possible to pass off Parliamentary inquiry with a relatively limited version of the truth.21 The 1947 Act made provision for the holding of public local inquiries in three major cases: (1) where there were objections to a development plan; (2) where an appeal was made to the Minister against the refusal, or conditional grant, of planning permission by a local authority or an application was called-in; (3) where coercive action was proposed by a local planning authority, such as a discontinuance order or compulsory purchase order, and an affected landowner was given the power to object before the Minister confirmed the order. The legislation itself referred to “a person appointed” by the Minister to conduct the inquiry. In practice, this was almost always a civil servant from the Ministry of Town and Country Planning, which in 1951 became the Ministry of Housing and Local Government. The decision in every case was to be taken by the Minister, although for the most part decisions would be taken by senior civil servants on the Minister’s behalf. But a preliminary procedural requirement was to hold a public local inquiry if any of the parties with the capacity to request it did so. The role of the Inspector was to report to the Minister, not to take the decision on his own behalf. By now, the fundamental characteristics of the inquiry system were well established. They comprised:  The publication of notice of a proposal;

20 21

Cullingworth, JB Peacetime History of Town and Country Planning Crossman Diaries ???

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 The right to object, though limited in relation to Parliamentary bills to those with the requisite locus, and other legislation to carefully defined “statutory objectors”, usually those with a property interest, or a special locus (such as a local authority under the Electricity Acts);  A local inquiry, of an investigative character, conducted by an inspector;  A right for the public to attend the inquiry, and for qualified objectors to participate in it;  A written report by the inspector to the relevant Minister, though not published;  A published decision.

9.2.5 Phase 5: The Franks Committee and its consequences The Committee on Administrative Tribunals and Enquiries was appointed by the Lord Chancellor in 1955, under the chairmanship of Sir Oliver Franks. Its other 15 members included a future Lord Chief Justice (Parker) and Lewis (by now Lord) Silkin. The recommendations of the Committee were to have far-reaching effects on the conduct of public local inquiries, on the role of Inspectors, and of the powers of Ministers. The scope of the Committee’s terms of reference was broad, and they were able to review the whole range of decision making procedures that had emerged from post-war welfare legislation. They noted that over most of the field of public administration, no formal procedure was provided for objecting to proposed action, or deciding on objections. However, in relation to land, rights of objection and inquiry were relatively well developed. The reasons why this should have been so are outlined above. The rights which formerly existed in relation to Parliamentary deliberation on Private or Local Bills, or provisional orders, had been preserved upon the transfer from Parliament to the Executive of these powers. The Committee noted that there were two competing theories in relation to the character of procedures under land-related legislation, what might be called the “administrative” and the “judicial” views. Under the administrative theory, the decision taken at the end of a process was part of a furtherance of the positive processes of government, and provided the deciding Minister did not overstep the legal limits of his powers, his discretion was wholly unfettered, and his accountability lay exclusively to Parliament and not to the courts. On the judicial theory, there were unavoidably close resemblances between these decision making processes and those of the courts, and that the Inspector, even though not deciding the issue himself, nevertheless had an important role in the making of the decision. Hence, given that the inquiry took on something of the nature of a trial, and the Inspector assumed the guise of a judge, the ensuing decision was or should have been classified as “judicial” in the sense that it should be based wholly and directly upon the evidence presented at the inquiry.22 In the Committee’s view, planning procedures had been based closely on those relating to compulsory acquisition of land. These in turn had drawn upon Private Bill procedure, under 22

Report of the Committee on Administrative Tribunals and Inquiries (Cmnd. 218) 1957, paras 262 - 265.

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which the final decision had been that of Parliament, though with the opportunity for Ministers to influence the decision through report or evidence to the Committee, and by using the Government’s majority on the floor of the House. Hence, the intention of the legislature in providing for an inquiry or hearing under planning legislation seemed to have been two-fold: “to ensure that the interest of the citizens closely affected should be protected by the grant to them of a statutory right to be heard in support of their objections, and to ensure that thereby the Minister should be better informed of the facts of the case”.23 The Committee’s general conclusion was that planning procedures could not be classified as purely administrative or purely judicial. Neither of these views at its extreme was tenable, and neither should be emphasised at the expense of the other. The Committee set out therefore to find a reasonable balance between the conflicting interests. As they put it: “on the one hand there are Ministers and other administrative authorities enjoined by legislation to carry out certain duties. On the other hand there are the rights and feelings of individual citizens who find their possessions or plans interfered with by the administration. There is also the public interest, which requires both that Ministers and other administrative authorities should not be frustrated in carrying out their duties and also that their decisions should be subject to effective checks or controls, and these, as we have pointed out, can no longer be applied by Parliament in the general run of cases”.24 Against this background and in accordance with the three principles that had been adopted by the Committee of openness, fairness and impartiality, the Committee turned to review the principal components of contemporary inquiry procedure. 9.2.5.1 Pre-inquiry procedure The Committee believed that fairness required that those whose individual rights and interests were likely to be adversely affected should know in good time before the inquiry the case which they would have to meet. They recommended that acquiring and planning authorities should give full particulars of their case in good time before the inquiry, so that those affected would be better able to prepare and present their case. They also noted that it was “a major source of grievance that the considerations of general policy upon which many ministerial decisions are primarily based are not known to the individual at the time of the inquiry and that, were they known, the presentation of his case would take a different form”.25 The Committee urged that Ministers should make statements of policy publicly available, and although for this a Minister should be answerable to Parliament, and the merits of policy should not be open to debate in an inquiry, it should be possible in many cases for policy considerations to be disclosed. 9.2.5.2 Inspectors By 1955, the Ministry of Housing and Local Government had its own staff of qualified inspectors, and certain other Departments were also employing these inspectors on loan for the inquiries for which they were responsible. A tradition had developed, however, for some Ministries (Education, Transport and Civil Aviation and the Scottish Departments) normally 23

Ibid. 269. Ibid. 276. 25 Ibid. 286. 24

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to appoint persons from outside the public service to conduct their inquiries. One of the most controversial areas upon which the Committee heard evidence was whether the Inspectorate should become independent of the Departments concerned. The Committee reviewed the evidence very carefully. The most powerful case for retaining the existing arrangements for Departmental inspectors related to the need for the decision to be influenced by considerations of Government policy. The argument put by the Ministry of Housing and Local Government was that the ideal might be for the Minister himself to hold the inquiry and thus hear the evidence at first hand, but since that was clearly out of the question the next best course was for one of his own officers to perform this function, because that person could be kept in touch with developments in policy. A related constitutional issue was that the Minister was required to accept full responsibility for a decision taken in his name, and this might be difficult if somebody not based within his Department made the report on the inquiry. There were also managerial issues. For example, the Ministry argued that it needed a core of full-time Inspectors if inquiries were to be arranged and completed with reasonable promptitude and that the highly technical considerations which frequently arose made it advisable for the Inspector to be a person constantly engaged in this kind of work. There was also a fear that if the Inspectorate were transferred to the Lord Chancellor’s Department, it would foster the impression that the process was judicial. The arguments in favour of an independent Inspectorate were that public confidence in the procedure, especially at the inquiry stage, would be increased and that it would help to remove the impression that the scales were weighted against the individuals, particularly in cases where the proposals had been initiated by the very Minister whose Inspector was conducting the inquiry. Proponents of change also observed that there was no reason why members of an independent Inspectorate would not be as in touch with Government policy as those of an Inspectorate within a Government Department. And, as the Minister would continue to make the final decision in any event, his policy would continue to prevail. There was another reason, relating to the publication of reports. The feeling was that an independent Inspector’s report could be published with less embarrassment than a report by a member of the Minister’s Department, particularly in a case where the Minister proposed to depart from the report. In the event, Franks recommended that the Inspectorate should be placed under the control of a Minister not directly concerned with the subject matter of their work. This, for England and Wales, would most appropriately be the Lord Chancellor26. This would be more than simply a change in name, but would symbolically emphasise the impartiality of Inspectors at an important stage of the adjudicative process, and thus do much to allay public misgiving. That recommendation was rejected.

26

Lord Silkin dissented from the Committee’s recommendations relating to the status of inspectors and to the publication of their reports. He believed that the Inspectorate should remain with the Ministry, and that the reports of inspectors should remain confidential and not be published. He would not, however, object to providing the parties with a summary of the Inspector’s findings of fact before the decision was given by the Minister, and allowing any party the opportunity of making representations.

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9.2.5.3 Inquiry procedure The Committee reported that the evidence which it had received indicated that inquiries were in general satisfactorily conducted, and they had no criticism to make on this score. They believed, however, that a standard code of procedure should be published and made available to the parties. They also urged that a public inquiry should always be held in preference to a private hearing, unless for special reasons the Minister otherwise decided. The main object of the proceedings should be to keep the procedure reasonably simple and inexpensive, but with sufficient orderliness in the proceedings to ensure that the inquiry played its proper part in the total process. Although strict rules of evidence were not required, the Inspector should be given wide ranging powers to administer oaths and to subpoena witnesses.27 The Committee also urged that costs should be awarded more widely than before, and that in planning appeals they should generally, but not automatically and as of right, be awarded to successful appellants who owned the land in respect of which they had sought planning permission. Costs should also be awarded, whatever the result of the appeal, if the local planning authority were held to have acted unreasonably.28 9.2.5.4 Inspectors’ reports In 1955, Inspectors’ reports were not made available to the parties. Government Departments were firm in resisting any change in this respect. They maintained that the report of the Inspector, though clearly of great importance, was but one of many matters which a Minister might need to take into account in arriving at a decision, and that to publish the report might increase public dissatisfaction in those cases where the Minister found it necessary to differ from the Inspector’s recommendations. Ministers would be exposed to “difficulty and embarrassment” which would arise from the disclosure of differences between his decision and the recommendations of the Inspector, and this would remain even if Inspectors were placed under the general charge of the Lord Chancellor29. Other familiar arguments were that publication might lead Inspectors to be less frank and therefore less helpful to the Minister in their comments and recommendations, and that reports might be completed less promptly because of the greater care needed in drafting. But it was clear that there was overwhelming support from outside Government for change. The Committee reported that they had received more evidence on this point than on any other aspect of the procedure, and that, with the exception of evidence from Government Departments, its tenor had been overwhelmingly in favour of some degree of publication. Government Departments sought to fend off the likely recommendation of the Committee by putting forward a compromise solution, in which the Inspector’s report would not be published, but instead a draft of the Minister’s decision, including his full findings of fact, should be furnished to the parties, who would then be given an opportunity to make representations on those findings. This course the Committee rejected. They concluded that the right course was to publish the Inspector’s report in full. There was no doubt that publicity was in itself an effective check against arbitrary action, and publication of the report seemed to flow naturally from the fact that the inquiry itself was held in public. They also recommended that the parties should have an opportunity to propose corrections of the fact in the first part of the Inspector’s report, before it was tendered to the Minister.

27

Ibid. 312, 313. Ibid. para 324. 29 Ibid. para 336. 28

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9.2.5.5 The Minister’s decision Concern had been expressed to the Committee about the “administrative character” of postinquiry procedure, under which Ministers were able to take into account fresh evidence or new opinions, and that this might well determine the final decision. The Committee were keen to preserve the right of Ministers to change their policies after the closing of the public local inquiry, but were not willing to countenance that a Minister should be able to take into account new factual evidence. The Committee therefore recommended that the Minister should be under a statutory obligation to notify the parties concerned of any factual evidence, whether from his own or another Department or from an outside source, which he obtained after the inquiry. In their definition of “factual evidence”, the Committee included expert opinion on matters of fact but not expert assistance in the evaluation of technical evidence given at the inquiry. There might, they thought, be cases in which it would be clearly desirable to give the parties an opportunity to cross-examine on the new evidence.30 The Committee were also clear that the final letter of decision from or on behalf of the Minister should contain full reasons for the decision. The Minister’s letter of decision should set out in full his findings and inferences of fact, and the reasons for the decision. Since the letter would be, for the future, accompanied by the full text of the Inspector’s report, it would inevitably reveal where, if at all, the Minister differed from the Inspector’s findings or inferences of fact or recommendations and it would also reveal the reasons for those differences. 9.2.5.6 Appeal and judicial review The Committee rejected proposals to extend any right of appeal on facts from decisions of the Minister. Several proposals were submitted to them, in particular as the Committee wryly noted, “by organisations representing members of the legal profession”, that would enable appeals to be brought to the High Court on the ground either that the Inspector’s report or the Minister’s letter of decision contained errors of fact or that, in one respect or another, the decision was not “reasonably” based on the evidence of the inquiry and the facts found by the Inspector. These would have had the effect of introducing an appeal on the merits against the decision, and the Committee did not regard such an appeal as appropriate. They saw the solution to current dissatisfactions as lying in the reforms that they proposed to the decision making process, which would allow appeals to the courts to remain restricted to the two grounds of ultra vires and procedural defect. The Committee also rejected the extraordinary proposal put forward by the General Council of the Bar which would have allowed appeals in appropriate cases on their merits to Parliament. The Committee took the view that this would involve in substance a return to the system of Parliamentary decision in the very matters which Parliament itself had found it expedient to discontinue in favour of delegation to Ministers responsible to Parliament. The recommendations of the Franks Committee were, in the event, to have a powerful impact on the way in which environmental dispute resolution was to be undertaken for the future in England and Wales. For the most part, the Committee’s recommendations were adopted by the Government, including the recommendation that the reports of Inspectors should be published, the restrictions on the Minister’s capacity to take into account new 30

Ibid. para 350.

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factual matters following the close of the inquiry, and the creation of a Council on Tribunals (by the Tribunals and Inquiries Act 1958). In 1962, new procedure rules for planning inquiries were made by the Government following consultation with the Council, in line with the Franks Committee’s recommendations. The rules did not extend to all planning inquiries, and in particular, enforcement inquiries were to remain outside the formal statutory system until 1981. But the model established in 1962 has now become the standard model for inquiries across the board, including those relating to compulsory purchase, and to the energy sector. Their emphasis was primarily upon pre-inquiry and post-inquiry procedure, and the rules, even today, have relatively little to say about the actual conduct of inquiries themselves. That remains principally a matter for the Inspector concerned. Overall, however, the effect of the introduction of the rules was, as the Ministry had feared in its evidence to the Franks Committee, to tilt the balance generally in decision making closer to the judicial model than to the administrative model. The Permanent Secretary to the Ministry was to complain bitterly about the impact of the changes on the Ministry’s decision making work. She maintained that far more effort now had to be applied by officials to make decisions “lawyer-proof”, and that the rules to be observed were substantially more complicated, and at points more difficult for interpretation: “The quasi-judicial work is now potentially explosive; and unless the responsible branch feels able simply to endorse the Inspector’s report, cases go to a senior officer before decision, and often to a Minister, with consequent clogging of the works”.31 This tendency towards greater judicialisation of appeal decision making has since been accelerated by four significant developments. 9.2.5.7 Post-inquiry procedure The first was a decision by the Court of Appeal on the powers of the Minister to take into account further information following the receipt of the Inspector’s report. In Lord Luke of Pavenham v Ministry of Housing and Local Government32 the Court, reversing the first instance decision, adopted a very narrow construction of the phrase in the rules, which had built upon the Franks recommendation “finding of fact”. In the view of the Court of Appeal, the Minister should be able to come to a different view on the planning merits of the case without referring the matter back to the parties. If, however, the Minister should come to a different view from his Inspector as to the recorded facts or the inferences of fact, rather than of planning opinion, to be drawn from them, he must then seek the views of the parties. This was a fine distinction, and although in practice its interpretation was tempered by the limitation on the court’s power to quash the decision to cases where the applicant had been substantially prejudiced, it confirmed that the Minister’s powers had been significantly restricted by the 1962 rules. 9.2.5.8 Transferred jurisdiction The second major change was the introduction, in 196833, of a power to transfer decision making jurisdiction wholly to an Inspector and out of the hands of the Secretary of State himself. This was a belated implementation of a recommendation of the Franks Committee, which had been pressed to recommend the establishment of planning appeal tribunals. These might be wholly independent of public authorities, or composed of representatives of local 31

Dame Evelyn Sharp, The Ministry of Housing and Local Government (George Allen & Unwin) 1969, pp 3627. 32 [1968] 1 QB 172. 33 Town and Country Planning Act 1968, ss. 21-26.

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planning authorities or local justices. The Committee rejected those proposals, because they believe that it would be impracticable to try to classify in advance those cases which raised purely minor and local issues, and which would not therefore need to be decided by the Minister. The huge volume of planning appeal work that was falling on Government Departments (running at 600 hearings and inquiries a month) could better, in the view of the Franks Committee, be dealt with by delegating the decisions on some appeals to inspectors themselves. The Committee felt that this would mean that the decision would be taken by the person holding the inquiry or hearing, with an obvious saving of time. The Minister could not then be accountable for a decision so delegated, but he would be responsible to Parliament for the act of delegation. The Committee felt that the Minister would presumably delegate decisions only in cases in which Departmental policy was non-existent or of little importance, and that it would not be necessary for the inspector to produce a full report in such cases. In the event, there has been a transformation in the relationship between Planning Inspector and Minister. Until 1968, all decisions on planning appeals were taken by the Secretary of State or in his name, following consideration of the inspector’s report. The door that was opened in 1968 to allowing jurisdiction to be transferred to inspectors was initially tightly restricted, though it did extend to a significant proportion of the appeal work. Only applications involving residential development, of up to 10 dwelling houses, stood transferred to Planning Inspectors, and the Secretary of State in any particular case could recover jurisdiction34. By 1977 the limit had extended to 60 dwellings35, and the classes of case included all planning and enforcement appeals. Industrial development of up to 1,500m2 was also brought within the transferred jurisdiction, together with a variety of operation and ancillary development. The justification for this transfer of jurisdiction was simple. Only in a small proportion of cases had the Secretary of State ever over-ruled the inspector, and the Franks Committee’s recommendations as to post-inquiry procedure had made this significantly more difficult. There was therefore little justification for continuing with a practice that was both timeconsuming and a pretence. Far better to bring together the responsibilities for conducting the inquiry with those of taking the actual decision. This has been a quiet but significant revolution. Additional tranches of jurisdiction have been successively transferred to Planning Inspectors. Following the most recent transfer order in 199736, the overriding majority of planning appeals, enforcement appeals and listed building appeals are transferred to the Planning Inspectorate. Only those relating to Grade I listed buildings, and those relating to the operational land of statutory undertakers, where decision making power is shared between the Secretary of State for the Environment and the Minister 34

Town and Country Planning (Determination of Appeals by Appointed Persons) (Prescribed Classes) Regulations 1969. 35 Town and Country Planning (Determination of Appeals by Appointed Persons) (Prescribed Classes) (Amendment) Regulations 1977. 36 Town and Country Planning (Determination of Appeals by Appointed Persons) (Prescribed Classes) Regulations 1997 (SI 1997 No 420).

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of the sponsoring Department for the undertaking, are not transferred to inspectors. The consequence of this is that over 95% of all appeals are now transferred to Planning Inspectors37. It is noteworthy that this is not the planning appeals tribunal notion, which Franks considered and rejected, in a different guise. Planning inspectors are required to operate within the context of Government policy, and will be required by the courts to show in their written reasons that they have properly applied and understood current policy, or given valid and adequate reasons as to why that policy should not apply in the particular case38. 9.2.5.9 The switch to written representations There has been a parallel revolution which has accompanied the switch of jurisdiction to inspectors (though it may be more a reaction to, than a cause of, the judicialisation of the process). It is the rapid decline in the use of public local inquiry procedures for the determination of planning appeals. The statutory right for the principal parties to require the holding of a public local inquiry has been retained, although on occasion under sustained attack; what has changed has been the administrative attitude towards it and the attitude of parties themselves. On administration, there has been strong encouragement by the Secretary of State for parties to use written representations procedure wherever the method “is not clearly unsuitable”. The delay and expense of public local inquiries has itself applied pressure to parties to accept the swifter and cheaper method of written representations, so that today over 80% of all cases are now handled by this method. In place of a formal public local inquiry, there is consideration by an inspector of the documents submitted by the parties to the dispute, together with a site visit (usually accompanied by representatives of the main parties) to allow the inspector to familiarise himself with the physical features of the site. This is followed by a decision letter or report to the Secretary of State in the usual way. 9.2.5.10 The supervisory role of the courts It is axiomatic that there is no appeal on the merits from decisions of the Secretary of State or his inspectors. There are various rights of appeal, or application, to the High Court under the statutory provisions conferring jurisdictions, and there are parallel opportunities to seek judicial review of decisions where no statutory right is conferred. Similar criteria are applicable under all heads: the decision must be shown to be outwith the statutory powers of the decision-maker, whether by virtue of failure to comply with the proper procedure, or substantively. This is not, of course, a simple matter of applying legal rules to established facts. Inspectors operate within a policy framework as well as a legal framework. Doctrines have therefore been developed by the courts to enable a proper recognition of the primacy of political accountability for the merits of decisions taken under planning legislation, whilst ensuring that appropriate legal protections are maintained for those affected by those decisions, whether as prospective developers or as objectors. Central to these are two facets: the requirement to furnish reasons for decisions; and the duty to “have regard” not only to the development plan but also to other material considerations, including government policy. An inspector’s (or Secretary of State’s) decision letter is vulnerable to challenge on the grounds that it does not, in the view of the court, state adequately the reasons for the conclusions and recommendations contained it; or for misconstruing or misapplying policy; or for taking into 37

The Secretary of State retains power, under the Town and Country Planning Act 1990, Sched 6, to recover jurisdiction in any particular case. 38 See per Woolf J in Gransden and Co Ltd v Secretary of State for the Environment (1987) 54 P & CR 86, at 93-94.

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account a matter not constituting a material consideration (or failing to take account of a material consideration); or for departing from policy, government or otherwise, without providing adequate reason for doing so. There is also the residual test of Wednesbury unreasonableness, which allows a decision to be questioned for, effectively, irrationality. It has rarely been used in that crude sense in planning or environmental challenges, because the courts have preferred to find some error or obscurity in the statement of reasons. Despite the realistic character of the courts’ approach to matters of law and policy, the availability of judicial challenge brings with it the real prospect that any decision letter written by an inspector is liable to be scrutinised in the High Court, and any procedural lapse reviewed. This inevitably reinforces a tendency for inspectors to act in a quasi-judicial fashion in running inquiries, and even to be more reticent than a judge would be about intervening.

9.2.6 Phase 6: the creation of the Planning Inspectorate Next Steps Agency (PINS) The Government rejected one of the most important recommendations from the Franks Committee. It was for the transfer of responsibility for the Planning Inspectors from the Ministry of Housing and Local Government to the Lord Chancellor. For another 24 years the inspectors were to remain firmly in the Ministry, subsequently becoming the Department of the Environment. There also remained, in parallel, a Panel of Independent Inspectors maintained by the Lord Chancellor’s Department, who deal with special cases such as trunk road orders for the Department of Transport. Although the Planning Inspectorate provides them with management and administrative support, the Lord Chancellor appoints them. The reason for this scheme is to provide for the appointment of an independent inspector in cases involving development proposed by a Government department. In addition, there are occasional appointments of independent inspectors who are not members of the Panel, for example members of the Planning Bar, to hold inquiries into other major Government development proposals. However, two things were to change. First, the arrangements for transfer of jurisdiction of appeals to inspectors undermined to some extent the arguments previously advanced by the Ministry for retaining close control of them. The Ministries’ concerns had to some extent, in any event, been met by the resurgence of judicial review in the hands of courts, who were now proving willing to explore the extent to which an inspector’s decision letter complied with or departed from Government policy. The pressure on inspectors to remain acquainted with, and in tune with, Government policy was coming now directly from the courts rather than solely from the Secretary of State. Second, the transfer of jurisdiction meant that planning appeal decision making was concentrated almost entirely in the hands of a specialist core of inspectors. Only a small proportion of decisions, requiring the Minister’s own decision, remained with the higher level civil servants in the Department, and the bulk of this work was being handled in regional offices. There was therefore a reasonably self-contained cadre of planning

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inspectors, whose policy and operational links with the remainder of the Department of the Environment were becoming more tenuous. Hence, when in the late 1980s the Government was anxious to review which functions of Whitehall might be removed from central control and become more independent as “next step” agencies, the Planning Inspectorate was a strong candidate. Ironically, however, when the translation occurred in 1991 with the creation of PINS, it became clear that the independence that was accorded by the new status was strictly limited. The Chief Planning Inspector might have new financial responsibilities, including the preparation and implementation of the business plan; he or she might be presented with targets by the Government against which the Inspectorate’s performance was to be measured, but financial resources for the Inspectorate were still to be closely controlled by the Treasury, and the policy framework of its operations closely controlled by the Secretary of State and the courts. Hence, although the creation of the new agency might potentially have symbolised greater independence for it, the reality is that it remains little changed constitutionally from the organisation for which the Franks Committee sought independence 25 years previously.

9.2.7 Phase 7: the final transfer of Parliamentary power By coincidence, the establishment of the Agency coincided with a decision by Parliament to transfer to the Executive responsibility for practically all the remaining areas of Private Bill jurisdiction relating to planning issues which remained with Parliament. Two Parliamentary Select Committees had been appointed in the 20th century to review the processes of private legislation, but their terms of reference were narrowly cast. The Dunnico Committee, which reported39 in 1930, was appointed “to consider whether any, and if so what, alterations are desirable in the practice and procedure of this House with a view to facilitating proceedings on Private Bills and lessening the expense at present incurred”. Their main lines of inquiry had to do with the timetabling of private legislation, but they did revisit the question whether local inquiries, “which might be held before a Commissioner or selected Members of Parliament”, might be substituted for the present method of inquiry by Parliamentary committee. They noted that the Ministry and the local government associations were generally against such a scheme, which was felt would save neither time nor expense, and the Committee itself felt: “that such a scheme involves in effect the surrender of the authority of Parliament. The House would be obliged to accept the finding of the Commissioner or Members, before whom the local inquiry was held, or, by repudiating the finding, would make the inquiry futile and saddle the promoters with useless expenditure”40. The issues were revisited in 1955 when Parliament appointed the Glanvill Hall Committee, a Joint Select Committee of Lords and Commons, with similar terms of reference41. Although they noted that it was becoming difficult to find Members willing to serve on Private Bill Committees42, they rejected again the proposal for substitution of a local inquiry. The reforms that had occurred in Scotland were welcomed. Under the Private Legislation Procedure (Scotland) Act 1936, the Private Bill process is taken by Provisional Order, and a 39

Report from the Select Committee on Private Bills HC 1930. Chairman: Sir Herbert Dunnico MP. Ibid., para 20. 41 Report of the Joint Committee on Private Bill Procedure HC 1955. 42 Although it was still the one duty a Member was obliged under Standing Orders to perform, even if suspended from the service of the House (Ibid., para. 35). 40

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special Panel of Commissioners, usually in Glasgow or Edinburgh, conducts the parliamentary inquiry locally. But Glanvill Hall felt that “the advantages of local inquiries in England and Wales appear doubtful”, and that it would probably be cheaper and more convenient for all parties if important inquiries on local legislation were conducted in London. The Scottish experience did not seem to suggest that local inquiries would lead to any reduction in cost43. Both Committees were concerned solely with procedure: neither was invited to consider the prospect of transferring substantive decision-making power to the executive government. That, indeed, would have been considered a surrender of Parliamentary authority. Yet the process that we have outlined above of gradual transfer of responsibility to the Executive had by 1991 picked up the great bulk of decisions on projects affecting the physical and natural environment44. Nonetheless, the list was not complete. Although responsibility for the construction and maintenance of highways had long since been transferred to the Executive, no similar decision had been made in respect of railways, not least because the bulk of the rail network in England and Wales had been completed before the end of the 19th century and hence before the general though incremental transfers of powers from Parliament that we have outlined above. Similar considerations applied to canals and waterways, and also to docks, ports, and harbours. Hence there was an unsatisfactory position that major works involving any of these elements might avoid the normal planning process, and go instead to Parliament under the old private bill procedures. This was not a simple matter of avoiding planning control, as some of its critics occasionally misrepresented it. There was no power to seek Parliamentary approval to activity which was capable of being authorised by the Executive, and the first matter which a promoter of a private bill had to prove to Parliament was that the powers that he sought could not be obtained in any way other than through Parliamentary legislation. However, where the works did involve some element of interference of existing rail track, there was no other method of securing approval. In the case of very major projects, to which there was high Government commitment, the appropriate course generally was to proceed by way of public general legislation, although the bill itself would be “hybrid”, and thus require Parliamentary approval both through the general public route, and through special procedures akin to those involved in private legislation. There was concern that, in at least some of these major instances, the “tail was wagging the dog”, and that the need for private legislative approval of some component of the scheme was inducing promoters to bring the whole of the scheme to Parliament in the belief that they might thereby have a quicker outcome and avoid conventional public inquiry processes.

43

Ibid., para 74. One major source of Private Bill legislation, which was local authority Bills seeking boundary extensions, had originally been undertaken by Provisional Order procedure under the Local Government Act 1894, but was dampened by the implementation of the Onslow Commission’s recommendation in the Local Government (County Boroughs and Adjustments) Act 1926 that it should for the future require Private Bill procedure, and a minimum population of 75,000. Thereafter, until 1958, although many boundaries Bills were promoted, only one further county borough was created. 44

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Matters came to a head in 1987 on the Felixstowe Docks and Harbours Bill, when one of the Members of Parliament appointed to the Select Committee to hear objections to the Bill rebelled, and refused to continue on the Committee. Her stance attracted a great deal of sympathy in the House, and following a recommendation from the Committee appointed for that Bill45, a Select Committee of both Houses was set up to review private bill procedure. This time, the terms of reference were more widely drawn. The outcome of that review was a report46, whose recommendations were accepted by the Government47, leading in due course to the Transport and Works Act 1992, which in effect completed the process of transfer from Parliament to the Executive of responsibility for decision making on major projects. Under the 1992 Act, the public local inquiry becomes the means by which all major projects are subjected to careful scrutiny, and the means by which the rights of objectors are secured. In some cases, an order may need still to go to Parliament for final approval, but not by subjecting it to the Parliamentary processes for private legislation. The Secretary of State is empowered to submit to Parliament proposals which are of national significance, at an early stage of proceedings. Unless both Houses of Parliament approve the proposal in principle within 56 days of the publication of the relevant notice, the proposal must lapse48. This is to be at the stage before they been the subject of consideration at a public local inquiry, in part because the Council on Tribunals, with echoes of the 19th century experience, feared that it would bring the inquiry process into disrepute if Parliament were to override an inquiry’s recommendations. Certainly to have allowed Parliament to reconsider details of a scheme after it has passed the inquiry stage would have been to resurrect all the flaws of the Preliminary Inquiries Act 1849. Given that the promoter of a Private Bill must first establish that there is no other means by which authorisation may be obtained to the project, the 1992 Act has effectively closed that route for works projects for the future. Parliament’s remaining powers are limited to:  cases still falling outside the 1992 Act and its predecessors, for example, where private or public rights need to be overridden and no other means is available (though the comprehensive powers conferred by the 1992 Act leave doubt as to whether works proposals might still remain outside it);  where legislation requires resort to be had to special parliamentary procedure, for example, in connection with the appropriation or compulsory acquisition of land used as common land or allotment land, where it is not possible for the Secretary of State to provide a certificate that satisfactory land is to be provided in exchange49;  matters referred to Parliament under the 1992 Act;

45

Report of the Select Committee on the Felixstowe Dock and Railway Bill (HC, 1988), para 40: “in cases where planning considerations are dominant, all works proposals for which Private Bill approval is presently required should instead be authorised through non-parliamentary procedures involving the holding, where necessary, of a public local inquiry into objections”. 46 Report of the Joint Committee on Private Bill Procedure, Session 1987-88; HL Paper 97. 47 Private Bills and New Procedures - A Consultation Document, Cm 1110 (HMSO, 1990). 48 Transport and Works Act 1991, s.9. 49 Acquisition of Land Act 1981, s.19; and see also Town and Country Planning Act 1990, s.229. Even if Parliament rejects the proposals under Special Parliamentary Proceedings, it remains open for the Government to introduce public general legislation to overrule that decision: a recent example is the Okehampton Bypass Order 1985.

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 works projects sanctioned by public legislation, which must then be taken through both houses of Parliament as hybrid legislation and subjected to committee stages comparable to those applicable to private bills50. In all other cases, the normal extra-parliamentary rules now apply: an application is made for consent to a public body, usually a local authority; against that authority’s decision the applicant has a right of appeal to the Secretary of State (in some cases it might be called-in selectively or automatically for determination by the Secretary of State); both the applicant and the local authority are entitled to insist upon the holding of a public local inquiry (though they may waive that requirement), which in most cases will be conducted by an inspector from the Planning Inspectorate who has authority actually to determine the applications; and the process is under the supervision of the High Court to which the participants have rights of applications, some statutory, otherwise by application for judicial review, and which may set aside decisions taken for want of substantive competence or procedural formality. Moreover, in instances (2) and (3) above, the Parliamentary proceedings will in almost all cases have been preceded (or, under the 1992 Act, followed) by a public local inquiry. Over the past 150 years, Parliament has steadily transferred to the Executive almost total direct responsibility for the scrutiny of proposals with land-use and environmental implications. And in place of the former scrutiny of proposals by Parliamentary committees there has been substituted the public local inquiry, conducted by an - inspector.

9.3 Environmental regulation Thus far, our history has touched only upon what might loosely be called land-use regulation, with the accompanying characteristics of compulsory powers to acquire land and to amend, modify or revoke consents that have been granted. The history in England and Wales of environmental regulation more broadly has been more fragmented, although today, as we shall see, many of its features are coming steadily closer to resemble those of the land-use system.

9.3.1 Early public health legislation We can detect two very general strands of development in environmental regulation. The first, which forms also a strand in the development of land-use planning control, is that of the public health movement of the 19th century. To planning control, it gave the public local inquiry, as part of the provisional order procedures conferred by the Public Health Act 1875 To environmental protection it gave the notion of the statutory nuisance. Statutory nuisances were introduced by the Public Health Act 1875 as a means to allow local authorities to take urgent action to overcome nuisances in their area. This approach was modelled upon the common law concept of nuisance, under which an adjoining landowner might bring proceedings requiring the abatement of a nuisance on another’s land. But where those proceedings were often expensive and cumbersome, and dependent upon the somewhat individualistic view by different judges of what would or would not constitute a nuisance, 50

Examples include the Channel Tunnel Act 1987, and the Channel Tunnel Rail Link Act 1996.

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the statutory version was intended to operate summarily (i.e. through the local bench of Justices); to have as its primary objective the remediation of the state of affairs complained of (i.e. the abatement of the nuisance); to be reinforced not by a civil claim for damages but by a swift and effective criminal penalty; and to have a prior definition of the types of nuisances to which the controls attached. The statutory nuisance remains a powerful instrument in the hands of local authorities today. At its heart is the local bench of magistrates. It is to the magistrates that an application is made for an abatement order, and it is to the magistrates that the matter returns on information served against a person who has failed to comply with the terms of an order directed at them. The statutory nuisance machinery provides the basis for current controls over emissions of noise; and it is also the conceptual foundation of the procedures for hearing appeals against remediation notices served under the provisions introduced by the Environment Act 1995 for the remediation of contaminated land. Hence, it has followed a different process of development from land-use controls generally. Of particular significance in a discussion of the environmental court concept is the power it confers on individuals to institute proceedings, by complaint, and the simple remedy this affords, as opposed to commencing civil proceedings in common law nuisance.

9.3.2 Command and control systems The second strand of development has been the establishment of often fragmented and separate “command and control” systems for environmental problems. By this we mean the practice of legislating so as to prohibit potentially harmful emissions to the environment, save in accordance with the terms of a consent issued by a regulatory authority. An early example was the Alkali &c Works etc Act 1906, which prohibited the emission of certain substances into the atmosphere. Similarly, water legislation has since the 19th century introduced successively stringent controls over the discharge of untreated sewage into rivers, attenuating the property rights which were established by the common law, where a right to pollute a water course might even arise by prescription. Parliament was in due course to introduce parallel controls over the abstraction of water from water courses and aquifers. Here, the balance was between public power and private property rights. For example, when power was taken in 1951 to introduce controls over abstraction for the first time, there was a “grandfathering” provision which allowed for the maintenance of existing abstraction rights51. Today, in relation to discharges into the water environment, the Agency has highly developed “command and control” powers, which enable it to impose conditions on the volume, temperature and character of emissions into the water environment52. The process of determining those applications, and of hearing appeals against those determinations, follows closely the processes of the town and country planning system. So too with emissions from certain industrial processes, by virtue of the controls established under the Environment Act 1990. It is an offence to carry out a prescribed process, or to make use of a prescribed substance, otherwise than in accordance with an authorisation granted by the Environment Agency for integrated pollution consent. The Act53 requires that the Agency take decisions on such applications within a legal and policy framework that 51

See today the Water Resources Act 1991, s.24 Water Resources Act 1991, s.88 and Sched. 10, para 2(5). 53 Environmental Protection Act 1990, s.7. 52

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extends to international, European and national law, including emission limits and environmental quality standards. There is, in each case, a right of appeal to the Secretary of State. As we shall see below, the Planning Inspectorate, through establishing a core of experienced inspectors, has become the obvious locus for the holding of public local inquiries into environmental appeals more generally than simply planning as narrowly defined, and in some cases for the further transfer of jurisdiction actually to determine the appeals.

9.3.3 Enforcement However, in all cases, including planning, enforcement is only in part a function for the Planning Inspectorate. There are two models: that the activity proscribed by the legislation is criminal in character without more (eg, the carrying out of unauthorised works to a listed building); or that a prior administrative step is required to expose the defendant to criminal liability (eg. the service of an enforcement notice). A breach of planning control falls in the second category. It can be dealt with only by the local planning authority first serving an enforcement notice, and the recipient of that notice then failing to comply with its requirements within the specified time54. Enforcement notice provisions in comparable terms are also to be found across environmental legislation as a whole, where their purpose, as with planning, is primarily remedial. However, breach of environmental legislation is almost always also a criminal offence in its own right, conferring on the enforcing agency a choice of remedies. Prosecutions are brought by way of information in the magistrates’ court, or indictment in the Crown Court, depending upon the seriousness of the offence. These proceedings are trials of criminal liability, not of the merits of the policy or the official decision underlying the complaint to the courts. Hence, there is no necessary requirement that magistrates should be aware of the policy context within which decisions are taken. Nonetheless, there are concerns, to which we shall return, that local benches of magistrates may not be best equipped to handle the complex issues which are capable of arising, even in the most straight forward of environmental prosecutions, should the defendant plead not guilty.

9.4 Conclusions This brief survey allows us to understand the historical roots of the existing arrangements in England and Wales for the determination of disputes relating to the use of land and environmental protection. Two themes are apparent: (1) that there is a long tradition of careful inquiry into proposals affecting land-use, which grows from the Parliamentary procedures of last century, and was carried forward— almost unquestioningly—into the planning control of this century. We may characterise this as a commitment to procedural environmental justice.

54

Town and Country Planning Act 1990, s.172.

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(2) There is also a long-run ambition to find cheaper, faster and less formal ways to achieve this end, that has seen responsibility transferred first from the legislature to the executive, then from the executive to the Planning Inspectorate. (3) The tradition for regulatory functions has been to retain not only first instance but also appellate decision-making within the administrative structure, and not to assign merits matters to the courts. The exceptions to that approach have been in the case of: (a) Criminal sanctions for breach of planning and environmental controls; (b) Judicial review, restricted to questions of law, of decisions taken within the administrative structure; (c) The special case of statutory nuisance, for which it was deemed appropriate to provide a remedy that was summary and local.

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10 The Planning Inspectorate Executive Agency (PINS) 10.1 The Inspectorate’s work The preceding chapter demonstrates how the Planning Inspectorate evolved into its present role as the central appeals body within the administration of land-use and environmental controls in England and Wales. Planning Inspectors today have responsibility for determining or hearing appeals, objections and applications under no fewer than 199 different statutory provisions.1 Much of this work involves appeals against the decisions of local authorities, which would, in each of the Australasian jurisdictions, be handled by a specialist court. Planning Inspectors are not, of course, courts of law, yet their task is to make decisions on matters of fact, within a legal and policy framework. There is a major distinction between the Australasian jurisdictions, and England and Wales, which needs to be drawn at the outset. It relates to the role of central government policy. There are quite different historical and cultural trends in the different jurisdictions, which may cause a British Government to be wary about departing from the tradition in which decision-making is an instance of policy implementation. The Planning Inspectorate is part of, not independent from, the general civil service. Hence it is, and always has been, an integral part of central Government, and its administration reflects this. Planning inspectors are not independent judges: relatively few are qualified lawyers, though it is common for any inspector to hear legal submissions and to make rulings on them. Even although inspectors rarely nowadays write a report on a case for dispatch to the Minister for determination, and instead themselves determine the great majority of appeals, they do so within a departmental policy framework. Planning inspectors do not make Government policy: they interpret it and apply it, though they may depart from it in appropriate cases and for good reason. Yet they are expected to be impartial in their decisions as between parties to disputes before them, which may include the Government. This is at source the traditional impartiality of the civil servant, rather than of the judge, yet it is as a judge that those appearing before him today perceive a planning inspector.

10.1.1 The source of inspectors’ jurisdiction Like the Australasian courts, the jurisdiction of Planning Inspectors is defined by the legislation under which functions are conferred. However, the pattern is not to confer the jurisdiction on the Inspectorate itself, but to provide certain statutory rights for parties to be heard, prior to a decision being taken by the Minister, by a “person appointed for the purpose”. This is an important distinction. Constitutionally, decision-making power remains

1

In addition, the Agency has responsibility for enquiries and recommendations under DoE’s Circular 18/84 Crown Land and Development. The Crown for most purposes is immune from planning control, but follows a shadow procedure of application to a local planning authority. When the authority objects to the development, there is provision under the circular for there to be a hearing, and for a report to go from that hearing to the Secretary of State. Additionally, the Agency has responsibility for a variety of non-statutory determinations, normally for the final determination by the Secretary of State.

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ultimately with the Secretary of State2. But, as we have seen, much of that responsibility has in practice been transferred to inspectors. The Planning Inspectorate itself has no statutory basis. Its role is simply to organise the hearing and determining of matters by planning inspectors. Jurisdiction is transferred not to the Inspectorate, but to an inspector. The arrangements which exist in practice can be summarised as follows: (1) cases in which appeals or other matters stand transferred to an inspector by virtue of a statutory instrument having that effect; (2) cases in which jurisdiction, though transferred under (1) above, is recovered by the Secretary of State. Recovery may occur at the outset, or in the course of proceedings, at any time prior to the inspector’s determination of the matter; (3) cases in which jurisdiction does not stand transferred, but is transferred in the particular case; (4) cases in which, although jurisdiction may be transferred, no order to that effect has been made, so it remains with the Secretary of State (5) cases in which the Secretary of State has no power to transfer jurisdiction.

10.1.2 The categories of jurisdiction (1) Appeals and called-in applications under planning legislation: in terms of volume of work, this is by far the biggest category; and within it, the planning appeals work under the Town and Country Planning Act 1990, section 78, dominates. The category also includes:  called-in applications, which though a small number numerically tend to include many of the most complex cases in terms of scale and impact of the proposed development;  enforcement appeals, under both planning and listed building legislation, which tend in both cases to raise not only planning issues but complex questions of law in relation to existing rights;  miscellaneous appeals such as those relating to advertisements control and tree preservation orders;  appeals and applications arising under the linked legislation, the Planning (Listed Buildings and Conservation Areas) Act 1990 and the Planning (Hazardous Substances) Act 1990;  certificates of lawful use and development. (2) Appeals and called-in applications under environmental protection legislation: this, as we have seen, is a relatively new but quickly growing area of jurisdiction. It includes appeals under the Environmental Protection Act 1990 against decisions of the Environment Agency for integrated pollution control, of local authorities in relation to 2

This is the case in the great majority of cases, though there are several instances where the final decision is taken by someone else: eg, development plan work (the local planning authority); trade effluent discharge consents under the Water Industry Act 1991 (the Director of OFWAT); inquiries held under the Electricity Act 1989 (the Secretary of State for Trade and Industry); drought permits (the Environment Agency); and instances where the inspector’s report may be to two Secretaries of State, such as planning appeals involving statutory undertakers, and inquiries under the Pipelines Act 1962.

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local air pollution control (LAPC), and against refusals of confidentiality in relation to both IPC and LAPC applications. Provision is also made in that legislation for called in applications, and similarly in relation to consents to discharge into the water environment and to abstract water, under the Water Resources Act 1991, sections 41, 43 and 91. Each of these provisions has various associated provisions, for example those relating to water protection zones (s.93) and nitrate sensitive areas (s.94) under the Water Resources Act 1991. The common thread of all of these elements of jurisdiction is that of a private individual having to obtain a permit or other form of consent from a state authority in order lawfully to carry out an activity. Hence the primary function of the Inspectorate is to provide a right of appeal (or of original jurisdiction in the case of a call in). (3) The compulsory acquisition of land: this relates to orders made under the Acquisition of Land Act 1981 which is a general procedural provision dependent upon the identification of specific powers of compulsory acquisition in other primary legislation. Examples include the Countryside Act 1968, sections 7, 9 and 10; the Education Act 1944, section 90; the Health Act 1977, section 87; the Highways Act 1980, sections 239 to 245 and 250; the Housing Act 1985, sections 17, 243, 255, 289, 290, 300; the Town and Country Planning Act 1990, sections 226 and 228; and the Planning (Listed Buildings and Conservation Areas) Act 1990, section 47. Closely related to this area of jurisdiction is the making of orders under legislation which confer public rights over private land falling short of the actual acquisition of title. Examples include orders for the creation or extinguishment of rights of way (Housing Act 1985, s.294); compulsory rights orders under the Open Cast Coal Act 1958; stopping of and diversion of footpaths and bridleways (Town and Country Planning Act 1990, s.257); and the ascertainment of public rights of way and reclassification of roads used as public paths (Wildlife and Countryside Act 1981, ss. 53 and 54). The third class of case within the compulsory purchase heading is that of associated rights, such as the stopping up or diversion of highways crossing or entering the route of a proposed new highway (Town and Country Planning Act 1990, s.248); line orders, detrunking orders and slip roads orders made by the Secretary of State under the Highways Act 1980, s.10, together with side road orders made under sections 14 and 125 of that Act. (4) Inverse compulsory purchase: there is provision under the Town and Country Planning Act, through blight notice and purchase notice procedure, for a landowner to require the State to acquire title to the land. Blight notice matters do not go to the Planning Inspectorate, because, if the local authority accepts the blight notice, it is deemed to be equivalent to the service of a notice to treat, so that normal post-inquiry compulsory purchase procedures apply. If the authority rejects the blight notice, then the applicant may refer his case to the Lands Tribunal which will make the final decision. In the case of purchase notices, however, it is a matter for the Secretary of State whether to confirm the purchase notice, or to reject it, and the Planning Inspectorate Executive Agency is involved in that decision. Both blight notices and purchase notices are different in kind from compulsory purchase proceedings, because the initiating power lies with the private individual rather than the State. (5) Confirmation of orders: in addition to the compulsory purchase order procedure under heading 1 above, the Inspectorate has jurisdiction in relation to the confirmation of orders which are made in draft by a local authority, statutory agency or government department. These cover a wide range of activities, but their common theme is the exercise of additional coercive power by the State. For example, there is the power of a local authority to make an order under the Town and Country Planning Act 1990 for the

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ENVIRONMENTAL COURT PROJECT: FINAL REPORT revocation or modification of a planning permission (sections 97 and 98); or for the discontinuance of any use of land (sections 102 and 103). In some cases the order is absolute in its prohibition, and the only way in which the action which it prohibits can be rendered lawful is for a fresh consent to be granted. In other cases, such as tree preservation orders under the Town and Country Planning Act 1990, or limestone pavement orders under the Wildlife and Countryside Act 1981, the order prohibits certain activities from being undertaken without consent, and established as the procedures by which that consent can be obtained. Because these tend to be specific restrictions on private activity, rather than of general application, they are normally underpinned by an entitlement to compensation. A further area is that of drought orders and permits. For drought permits, an inspector is appointed by the Environment Agency (who normally ask the Planning Inspectorate to provide one) to hear objections to water companies applications and to set out findings of fact and conclusions (but making no recommendation on the determination of the application)3. For drought orders, the decision is taken by the Secretary of State, usually following a hearing or inquiry, conducted by a Planning Inspector, who will make a recommendation. Planning inspectors do not, however, become involved in the assessment of compensation, which in all cases is a matter for negotiation in the first instance, but ultimately for referral to the Lands Tribunal.

(6) Policy review: the principal example of this is under the Town and Country Planning Act, where a development plan is prepared in draft by a local planning authority, placed on deposit for public objection or support, and where there is then a procedure of review of the objections to the draft. There are two principal procedures through which this is achieved. In the case of a structure plan, the appropriate process is under an examination in public. At one time, the Secretary of State’s approval was required to all plans, and this was secured by means of a public local inquiry. That was replaced, in the case of structure plans, in 1972, by a new process known as an examination in public. The examination is conducted by a panel, which originally was required to report to the Secretary of State, but which now reports to the county planning authority which alone has the responsibility for confirming or modifying the draft plan. The Secretary of State’s power is confined to placing an objection, and if necessary calling in the plan for his own decision. The panel by custom comprises an independent chairman, who may be a planning barrister or a former senior civil servant; and there is always also a planning inspector on the panel. Secondly, objections to the unitary development plans prepared by London boroughs and metropolitan authorities, and to the local development plans prepared by the Shire district councils and some of the new Shire unitary councils, are reviewed still through a public local inquiry procedure. For these, the Planning Inspectorate provides the Inspector, but the Inspector’s report no longer goes to the Secretary of State. Instead, it is made to the local planning authority.

3

Environment Agency, Drought Permits (1996). The powers are conferred by the Water Resources Act 1991, s. 79A, inserted by the Environment Act 1995.

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10.1.3 Matters not allocated to the Inspectorate The Inspectorate appears to have become the Government’s appellate arbiter of choice. When new rights of appeal or objection have been created under environmental legislation, the policy preference has been no longer to seek to determine them wholly within departmental structures, nor to create a separate environmental appellate structure, but instead to build on the quasi-judicial expertise and case management capacity that the Inspectorate developed originally in the land-use planning context. Neither the DETR nor the Welsh Office4 has any longer any quasi-judicial capacity left in the environmental sphere in relation to hearing objections or appeals5. Almost all of these functions are carried out by planning inspectors, in most instances through to final decision; in some few (but politically or technically important) instances, up to the point of receiving an inspector’s report and recommendations in cases still reserved to the Secretary of State (or, in Wales, the Welsh Assembly) for final decision. But this environmental jurisdiction is not exclusive. There are some instances where policyrelated disputes even under planning legislation are assigned to magistrates’ courts rather than to planning inspectors, and it is worth considering why this is the case. The distinction is often fine. Magistrates’ courts have the advantage of being local and accessible, particularly to defendants and their solicitors who lack expertise in planning and environmental law and policy. They have local knowledge, and are experienced in taking decisions based upon evidence. But they lack the specialist expertise that is often called for in planning and environmental cases, they do not operate within any national policy (as opposed to legal) framework and they have no accountability save through appeals to higher courts. There is therefore a risk of significant local variation in the application of statutory provisions. The principal examples under planning and environmental legislation are: 

Repairs notices issued in respect of listed buildings as the first step in compulsory purchase proceedings, where the landowner has the right6 to apply to the magistrates’ court for an order staying further proceedings on the compulsory purchase order if it is satisfied that reasonable steps have been taken for properly preserving the building. The procedure appears to be rarely used. Whilst the judgement that is called for on the part of magistrates may in many cases require the weighing of conflicting evidence of fact, there are also likely to be complex technical issues as to what the “preservation” of a particular type of historical building might reasonably require, to which the technical expertise available in the Inspectorate would seem to be better suited.



Appeals against notices requiring the proper maintenance of land, which, unlike enforcement notices, are made to the magistrates’ court rather than to the Secretary of State7. This appears to be an historical anomaly. The section is in similar form to the enforcement notice provisions prior to their fundamental reform in 1960, but escaped those reforms. Although there might be thought to be benefit still in retaining the jurisdiction of local magistrates over what are essentially local matters, the matter is indistinguishable on this, or other, grounds from enforcement appeals.

4

Or, after May 6, 1999, the Welsh Assembly. One odd but minor exception existed until 1997 in the case of advertisement appeals, which could not formerly be transferred. Though they now can be, a peculiarity remains in that the person appointed is not normally a planning inspector, but one of the Advertisement Control Officers transferred by DETR to the Inspectorate. 6 Under the Planning (Listed Buildings and Conservation Areas) Act 1990, s.47(4). There is a right of appeal against the magistrates’ decision to the Crown Court under s.47(6). 7 Town and Country Planning Act 1990, s.217. 5

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Statutory nuisance cases: statutory nuisance has a longer pedigree than planning control. It was intended to provide a summary means of abating the urban nuisances that followed the industrial revolution, by providing a stripped-down version of the tort of nuisance. Supervision of the process lies with local authorities, but there is also a right of individual application to the magistrates’ court for an abatement order; and appeals against abatement orders served by local authorities go also to the magistrates’ court8.



Appeals against remediation notices respecting contaminated land: the provisions of the Environment Act 1995 relating to the remediation of contaminated land were modelled closely on the statutory nuisance provisions, so that it remained possible for the Government to assert that they constituted little more than a consolidation and improvement of an existing regime. However, the complexity of both the process and the substance of the new regime is far greater than before, particularly in relation to imposition of liabilities through remediation notices. In drafting their notices, local authorities are required to act in accordance with statutory guidance, which includes a complex scheme for excluding certain parties from liability and for allocating the total liability amongst the remaining parties. To allow appeals against remediation notices to be channelled to the magistrates’ court reflected the statutory nuisance provisions on which the new regime was based, but required of lay magistrates a level of skill and commitment that was unreasonable. In light of representations received in its 1997 consultation on the regime, the new Government announced its intention in the first instance to have such cases heard by stipendiary rather than lay magistrates, and its willingness to consider more fundamental change in due course9.

We turn in the next chapter to review the structure and approach of the general courts, including the magistrates’ court, to environmental and planning cases.

10.2 The case load Numerous as the various heads of jurisdictions may be, the practical reality is that the greatest volume of case work for the Inspectorate is under the Town and Country Planning Act 1990. As with all its work, the case load under the planning legislation is demand-led, and demand has been particularly strong in the past five years in relation to development planning work. Table 21 provides a breakdown of the Inspectorate’s case work: Table 21: Planning Inspectorate’s caseload (England) Case types Development plan inquiries opened (includes Wales) Planning appeals 8

1995/96 1996/97 1997/98 91 59 48 11,214 12,029 13,051

See now the Environmental Protection Act 1990, Part III. Government response to Select Committee on the Environment, December 22, 1997, which observed that: “In the longer term, options for changes (which would require primary legislation) could include directing all appeals to the Secretary of State, or making use of the proposed Environment Division of the High Court (although this may be too senior a court to deal with the bulk of the caseload”. 9

CHAPTER 10: THE PLANNING INSPECTORATE Enforcement notice appeals (includes listed buildings) Listed building and conservation area consent appeals Listed building enforcement notice appeals Lawful development certificate appeals Public path and definitive map orders Advertisement appeals Compulsory purchase orders Called-in planning applications Environment Act, Environmental Protection Act and Water Resources Act cases (received) Drought orders and drought permits Applications for costs

325 1,886 608 129 116 430 1,654 31 76 49

2,230 678 144 77 454 1,925 45 67 203

3,147 780 196 123 307 2,442 82 64 214

16 1,227

26 1,667

3 1,511

Source: Planning Inspectorate Executive Agency Statistical Report 1996/97 and 1997/98 Note: the figures for appeals relate to the number determined in each year, and so disguise any fluctuations in the volume of appeals received. In relation to planning appeals, for example, there has been a significant decline over the period of the property recession from 1990/91, as Table 22 below demonstrates.

One potentially significant trend relates to the use of hearings. The percentage of cases in England determined by this procedure rose from 11% to 12.6% (15.2% in Wales, where there was also a 45% success rate in hearings appeals against