In New South Wales however, the Parliament has gone further. The Protection of the Environment Operations Act 1997 (the PEO Act) s 253 provides that ‘any person’ may bring proceedings in the LEC to restrain a breach or threatened breach of any Act if the breach is causing or is likely to cause harm to the environment. No leave of the court is required. The only requirement is that the Environment Protection Authority (the EPA) is required to be served with the application and may become a party to the proceedings. This means that there is open standing to approach the court for relief where there is alleged to be a breach of any legislation eg. regarding forests, mining, water resources, fishing etc, providing there is harm or likely harm to the environment.

Moreover, ‘any person’ may bring criminal proceedings for a breach of pollution legislation if leave is granted by the LEC. s 219 of the Protection of the Environment Operations Act 1997 The grant of leave is subject to the EPA deciding not to take action itself, the EPA being notified of the proceedings and the proceedings not being an abuse of process. Finally, the particulars of the offence must disclose, without any hearing of the evidence, a prima facie case.

The implications of the open standing provisions were underlined by Chief Justice Street in F Hannan Pty Ltd v Elcom. (1985) 66 LGRA 306 at 313 He said that the provision (s 123) made it clear that the task of the Court was to administer social justice and went beyond administering justice inter partes. He continued that the open standing provision:

… 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 is ultimately the discretionary province of the Court to determine in the light of all the factors falling within the purview of the dispute.

If nothing else, I would urge the UK to consider liberalising standing in environmental cases, not only to grant standing to mainstream environmental groups and NGOs, but to all citizens. This is especially important given the rights and responsibilities flowing from the Aarhus Convention and the Human Rights Act 1998.

Thus far, only relatively few such proceedings (under ss 219 and 253 of the PEO Act and its predecessor) have been brought. Nonetheless, the existence of the remedies are significant because they help to ensure that public authorities and prosecuting agencies do their duty. They keep the prosecutor’s eyes on the ball.
I should mention an aspect of criminal prosecutions of environmental offences which may surprise some in Britain. The EPA frequently prosecutes government departments and agencies, as well as local government councils, for environmental offences. For example, the LEC has imposed significant penalties on the Water Board, the State Rail Authority, the Urban Transit Authority, the Forestry Commission and the Waste Recycling Authority, to name a few.

Incidentally, I should correct a small error in the Final Report. It states that the criminal jurisdiction of the LEC is rarely invoked. Grant Report p 458 That is incorrect. In 1998 there were 150 prosecutions in the court and 109 in 1999. Disposals of prosecutions in those years were respectively 175 and 132.

Other barriers to access

In a speech in 1989 a former member of our High Court, Toohey J, drew attention to the need for procedural reform. He said that there was no point in opening the doors of the courts, by means of liberalised standing, if litigants could not afford to enter or were scared off by the devastating consequences for an individual or NGO in having to pay the costs of the successful party. This was especially so if the respondent was a multi-national corporation or government with, by comparison, unlimited resources.

From 1988 this difficulty had been recognised in a number of decisions by the LEC. By 1994 it was established that in genuine public interest litigation, costs should not automatically follow the event and the costs discretion extended to considering the quality of the applicant’s case and the public interest in the subject matter. By majority, the High Court of Australia upheld the principle that the nature of public interest litigation was a relevant factor in exercising the costs discretion, Oshlack v Richmond River Council. (1998) 193 CLR 72; (at first instance (1994) 82 LGERA 236)

There are, of course, other barriers to environmental litigation. I will refer briefly to some where the LEC has taken a positive approach to encouraging access to justice.

Security as to costs

The Court has taken a fairly hard line on applications for security for costs, emphasising the importance of the public interest nature of the litigation. see, for example, Pearlman J in Byron Shire Businesses for the Future Inc v Byron Shire Council (1994) 83 LGERA 59 (the Club Med case) This has been supported by some statements by the Court of Appeal. see Priestley JA in Brown v EPA (Court of Appeal, 1 April 1993, unreported) and Kirby P in Maritime Services Board v Citizens Airport Environment Association Inc (1992) 83 LGERA 107 at 111

Undertakings as to damages

From the mid 1980s the need for an applicant for an interim injunction to give to the court an undertaking as to damages has been relaxed by the LEC. If an applicant declined or was unable to give an undertaking, this was seen as but one factor to be taken into account in the balance of convenience and weighed in the exercise of the discretion to grant or withhold relief, Ross v State Rail Authority. (1987) 70 LGRA 91. In Phelps v Western Mining Corp Ltd Deane J said that ‘[T]here is no merit in the erection of a curial ambush of shibboleths in which even a legislative intent evinced by the words as clear as those used in s 80(1)(c) of the [Trade Practices] Act would lie entrapped’. See also Bowen CJ in CBA v Insurance Brokers Association of Australia (1977) 16 ALR 161

Pleadings

Brief points of claim and points of defence only are required. It is wonderful how the ingenuity of lawyers can lead to obfuscation in pleadings. Designed to identify and narrow issues, pleadings sometimes have the opposite effect, and lead to unnecessary technicality, extravagance, increased costs and delay and on occasions sheer ‘torture’. Illich v Illich [1971] 1 NSWLR 272


Discovery and inspection and interrogatories


Most public interest environmental cases require a more open access to documents than perhaps presently pertains. The issue was acknowledged by the LEC from its early days and the court has steadfastly resisted secrecy. Today, sterile arguments about privilege, commercial-in-confidence and Crown privilege are rare. Parties routinely produce documents without demur. The backing of freedom of information legislation Freedom of Information Act (NSW) 1989 assists but the culture of secrecy has all but gone. A recent example is to be found in a decision of Lloyd J in Transport Action Group Against Motorways v Roads and Traffic Authority (1998) 103 LGERA 338 where the authority claimed public interest immunity in producing tender documents. His Honour found that it was fundamental to the public interest that parties to litigation have access to documents. This was particularly so where a party was seeking to enforce a statutory obligation in furtherance of the public interest rather than a private right. The claim of public interest immunity was rejected. Put simply, it is necessary to overcome the culture of bureaucratic secrecy.

Ouster clauses

The LEC has continued the tradition of judicial scepticism of privative clauses with a strict approach to their application. This is exemplified by litigation under the Aboriginal Land Rights Act 1983. A series of LEC decisions lead the Government to all but abandon the use of preclusive ministerial certificates which had effectively denied Aboriginal land councils procedural fairness and avoided merit appeals on land claims. Worimi Local Aboriginal Land Council v The Minister (1991) 72 LGRA 149

Laches, acquiescence and delay and estoppel

The LEC has acknowledged that these equitable defences have only limited relevance to Public Law remedies, especially in the context of liberalised standing.
Wide discretion

The LEC has been confirmed to have a very wide discretion to grant or withhold relief and to mould its orders to best suit the case before it. Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 It will look beyond the parties to the public interest. Sedevcic at 340 (Kirby P) The Court of Appeal accepted the public interest that lies in the equal compliance with law by all, including the rich and powerful.

Time standards

The LEC was one of the first courts in Australia to introduce time standards for disposal of cases and for reserved judgments. It was also one of the first courts to form a Court Users Group to liaise with the court.

Alternative Dispute Resolution

From the court’s inception, alternatives to adjudication have been emphasised. Conciliation by technical assessors was mandated by the legislation. Originally the process was compulsory but it is fair to say that this lead to abuse. However, conciliation as a voluntary option is now quite popular in merit planning appeals, particularly for simple or more minor appeals. Conciliation conferences are often held on-site and have a consistent successful resolution rate of around 85%. Even if a conciliation does not succeed, issues are reduced and defined thus saving costs and court time.

Mediation in the LEC began in 1991, and was the first court annexed mediation scheme in Australia. The rate of successful mediations, carried out by highly qualified and experienced Registrars, is consistently around 70%. They usually take between one quarter and one third of the time of a hearing, thus the saving in money and court time is obvious. Issues Conferences in all but criminal proceedings are also undertaken as a case management tool.
The court legislation also provides for independent expert appraisal and neutral evaluation as further alternative dispute resolution options.

I have said before that my concept of a 21st century court is to provide citizens with a forum for dispute resolution which should not be confined to traditional judicial adjudication. When a litigant comes through the door of the court she or he should be informed of the alternative mechanisms available for dispute resolution. These should be provided by the court and not ‘out-sourced’. Litigants should be entitled to choose the means best suited to the particular nature and subject matter of the suit.

Legal Aid

This is, of course, crucial to access to the courts but obviously depends upon government policy. In New South Wales the legal aid tap for environmental cases has been turned on and off with some regularity. Today it is barely dripping. However, the situation has been greatly aided by the existence of Environmental Defenders Offices. For a history of the EDO see the collection of articles and contributions in Special Anniversary Edition - 10 Years of EDO (1996) 13(3) Environmental Planning Law Journal 149 - 234 and see the discussion in the Grant Report 5.21 pp 232 - 233

Exclusive jurisdiction

The court has exclusive jurisdiction to determine proceedings under various statutes, mostly concerning environmental law in the broad sense but also including much land law. It has ancillary and pendant jurisdiction but this does not extend to determining common law claims for damages, for example in trespass or negligence. National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 The court’s jurisdiction is divided into 6 classes.

Class 1 comprises merit appeals in planning, pollution, heritage, threatened species and contaminated lands, and appeals arising under a variety of other environmental statutes.
Class 2 includes many local government and related appeals but also appeals arising under a variety of other enactments. For example catchment management, strata title, swimming pools and noxious weeds.

Class 3 includes assessment of compensation for compulsory land acquisition, land tax appeals, rating appeals, property boundary determination, encroachment of buildings, water appeals, fisheries management, Aboriginal land rights, surveyors etc.

In each of these three classes the Court may be constituted by a lay commissioner, or a panel of them, or a judge sitting with a commissioner(s). In Aboriginal land rights matters a judge is assisted by two Aboriginal assessors.

Class 4 concerns civil enforcement (by the granting of declarations and injunctions, including mandatory orders) and judicial review. This jurisdiction arises under some 21 specified planning and environmental statutes. However, the jurisdiction is potentially much wider because s 253 of the PEO Act extends jurisdiction to the breach of any Act which is likely to cause harm to the environment.

Civil enforcement and judicial review are arguably the most important functions of the court. It is the principal jurisdiction in which the law is developed. It would be a mistake, I hesitate to say, if the proposed specialist court’s civil jurisdiction was triggered only by a transfer from the High Court. Grant Report 13.14.8 p 446

Class 5 is the summary criminal jurisdiction and includes all pollution prosecutions (water, air, noise and land), ozone pollution, waste disposal, transport of dangerous goods, heritage, planning, contaminated land, clearance of native vegetation, uranium mining, local government, fisheries, rivers and foreshores, national parks and wildlife and threatened species, marine pollution (mainly oil) and certain other offences.

Generally speaking the maximum penalties which can be imposed by the court are $1 million for a corporation and $250,000 and/or 7 years imprisonment for an individual. In such prosecutions, the general criminal law is applied. However, given the nature of environmental offences, some distinct features have already emerged. These are particularly evident in strict liability offences.

Class 6 deals with appeals from Local Courts in summary criminal matters.

I regard the summary criminal jurisdiction as a significant aspect of the LEC’s jurisdiction. It should be closely evaluated for inclusion in the British model and the recommendation in the Grant Report ought, I believe, be reconsidered. Grant Report 13.14.6 p 445 Criminal enforcement complements the civil enforcement mechanism and also allows pollution law to develop some distinct and relevant criminal law principles.

Commissions of Inquiry

You will have noticed from this jurisdictional review that the LEC does not have jurisdiction to conduct Environmental Commissions of Inquiry. These Commissions of Inquiry have always been separate in New South Wales. There are competing arguments as to whether incorporation of Commissioners of Inquiry, as a division of the court, would be a good idea. On the one hand, the Commissioners make only recommendations to the Government, which some fear would have the capacity to embroil the court in policy and politics. On the other hand, the Commissioners have a great deal of expertise to bring to the court and their membership would diffuse arguments that they are not independent of government.

Torts

The LEC does not have any jurisdiction in tort (or contract for that matter). As a result, it cannot hear claims for damages for negligence, nuisance or trespass, even by virtue of its ancillary or pendant jurisdiction. Toxic tort remedies are therefore not available in the court. My view of this is that it is not a bad thing. Lengthy common law trials have the capacity to distract the court from its Public Law tasks and may detrimentally affect the length of delays in the court, which have always been kept to a minimum. Personally, I would have no objections to a judge of the LEC being assigned to the Supreme Court to hear, for example, toxic tort cases.

Third party appeals

Third party merit appeals in the LEC are limited to matters in which projects or developments require environmental impact statements. These are usually developments with the potential to pollute or otherwise harm the environment and its amenity. This is the filter. It seems to me that it could be unwieldy to give third party appeal rights to every planning or environmental decision. Provided residents who object can be accommodated by the court hearing their concerns, without them formally becoming a party, this half-way house goes some distance to satisfying resident objections. This in fact presently occurs in the LEC. Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313 Full third party appeal rights, without limitation or filter, have the capacity to overburden the system and introduce unacceptable delays and costs.

A current review

You will be interested to hear that recently the New South Wales Attorney General set up a Working Party to review planning laws on development applications and the role of the court in reviewing them on appeal. This review has been brought about by complaints by some local government councils that their decisions were being reversed by a single unelected commissioner of the court or that the court did not pay sufficient regard to local community views. The Terms of Reference are annexed. The chair of the Working Party is the Hon Jerrold Cripps QC, a former Chief Judge of the LEC and a retired judge of the Court of Appeal. The Working Party is to be assisted by a reference group of so-called ‘experts’ which, for some inexplicable reason, includes me. In announcing the Working Party the Attorney General said:
I believe the Land and Environment Court objectively and independently decides matters before it, according to the law and the evidence. Some criticisms of the court have been ill-informed and misconceived. However, some reform may be appropriate.

The major focus of the working party will be to review the legislation underpinning the Court and the mechanisms for reviewing Local Council decisions on development applications.

I see the inquiry as a means of enhancing the role of the LEC and of perhaps pointing to the need to amend planning laws and policies, within which framework the court must work. Amendments may assist in providing the court with greater flexibility to make decisions in merit appeals which reflect the public interest.

The development of environmental law

It is a critical adjunct of a specialist environmental court that it have the capacity to develop the principles of environmental law and also a capacity for procedural innovation. In the past the LEC has demonstrated that it has those capacities.

Our environment poses endless challenges. Most of our environmental laws are directed towards the goal of environmental protection and enhancement, rather than its degradation. An environmental ethic therefore permeates the law. Specialist judges and commissioners approach the construction of legislation and assessment of factual situations (often premised on the basis of prophecy) with that philosophy in mind.

Over the last two decades the court has made many contributions to the development of environmental law, indeed to the law in general. The Grant Report provides some illustrations. They include procedural and substantive law. Let me mention some of the areas where the court has contributed to the jurisprudence, often almost from scratch. They are the protection of biodiversity of native fauna and flora, the enhancement of public participation in planning and environmental decision-making, the scrutiny of environmental impact statements and public projects, the re-emergence of the doctrine of public trust and the principles of ecologically sustainable development (ESD).

I will return to ESD in a moment but I want to mention two procedural reforms (emanating from the court) which have had general law application and impact. One has already been mentioned - that costs should not automatically follow the event of litigation where the public interest is involved in the proceedings. The second is the holding by the court that a corporation is not entitled to the privilege against self incrimination in the production of documents. This decision was against the weight of authority, including British, albeit authorities not directly binding. The High Court of Australia upheld the ruling, holding by majority that Caltex was not entitled to the privilege against self incrimination in facing prosecutions under the Clean Waters Act 1970. EPA v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 The court declared that the privilege against self incrimination did not extend to corporations and was not part of the common law of Australia. This decision has had a significant impact on investigations into, and trials of, white collar crime.

Reverting to ESD, it is patent that the development and application of the Rio principles and Agenda 21 are crucial to the future protection of the environment, nationally and internationally. All nine Australian jurisdictions have statutes which incorporate core ESD principles. New South Wales alone has in excess of 30 such statutes. Since 1993 the LEC has on occasions been called upon to construe, interpret and apply ESD principles in practical situations. I have rehearsed some of these instances in relation to the precautionary principle in a recent article in the Environmental Law Review. Stein, ‘A cautious application of the precautionary principle’ (2000) 2(1) Environmental Law Review 1

I mention some recent decisions in the LEC which continue the process of interpreting and applying ESD. In Carstens v Pittwater Council [1999] NSWLEC 249 Lloyd J held that the encouragement of ESD referred to in the objectives of the Environmental Planning and Assessment Act 1979 meant that ESD principles are mandatory considerations to be applied when assessing a development application even though they do not appear in the statutory list of considerations to be taken into account. In addition, ESD principles are encompassed within ‘the public interest’, which is specifically required to be considered.

Another judge of the court, Cowdroy J, emphasised the fundamental importance of public participation in the plan-making process in John Brown Lenton v The Minister. (1999) 106 LGERA 150 His Honour said that:

… [P]ublic participation is an important objective of the Act and should be regarded as crucial to the transparency and fairness of the plan making process (see Scurr and Ors v Brisbane City Council and Anor (1973) 133 CLR 242 at 252). In Carstens v Pittwater Council [1999] NSWLEC 249 at [20], Lloyd J drew attention to the need to interpret statutes by reference to their objectives. In the instant case the relevant objective is s 5(c) which states:-

(c) to provide increased opportunity for public involvement and participation in environmental planning and assessment.

Principle 10 of the Rio Declaration and Agenda 21 of the United Nations Conference on Environment and Development 1992 acknowledges the desirability of public participation in management of the environment. The Rio Declaration is not legally binding in Australia but it serves as a reminder that the provisions of Pt 3 of the Act ensuring public participation in the making of a local environmental plan should be strictly observed.


In Sustainable Fishing and Tourism Inc v Minister, (2000) 106 LGERA 322. For a discussion of the implications see Hurrell and Jardim, ‘Part 5 Nets Another Big Fish’ (2000) 5(4) Local Government Law Journal 230 Talbot J held that the Minister was required to obtain an environmental impact statement (EIS) before granting a commercial fishing licence. This was because the Minister was bound to consider the effect of the activity on threatened species. Since the activity was likely to significantly affect the environment of threatened species and their habitats, an EIS was required.

In Laura D’Amato, Filipowski v Fratelli D’Amato S.r.l. and Ors [2000] NSWLEC 50 16 March 2000 Talbot J fined the shipping line responsible for a large oil spill in Sydney Harbour in 1999 the sum of $510,000, 50% of the maximum and ordered it to pay clean-up costs of $4.5 million together with $400,000 legal costs. The Chief Officer was also fined $110,000.

The South Australian specialist environmental court The Environment Resources and Development Court of South Australia has also contributed to the development of ESD, in particular to the understanding of the precautionary principle. In Conservation Council of SA Inc v Development Assessment Commission [1999] SA ERDC 86 the court found that a proposal for tuna farming in Spencer Gulf contravened the precautionary principle, which had to be taken into account by the decision-maker. The court examined the difficult question of who bears the onus of proof under the principle.

It held that the proponent had the onus of satisfying the court that the development would be carried out in an ecologically sustainable fashion. That requirement arose whether or not the appellant had established a threat of serious or irreversible damage to the environment. However, the appellant would need to show that there was a prospect of serious or irreversible damage to the environment. If that is shown, the burden of proof shifts to the proponent to demonstrate that the measures to be taken will avoid serious or irreversible damage and that the risk-weighted consequences, when assessed, do not suggest that serious or irreversible environmental damage will be sustained.

The particular problem raised was the importation of pilchards for feed. There was evidence that the method of feeding had lead to entrapment of marine mammals and seals and the predatory killing of native and migratory birds. There was also evidence of scientific concern that local pilchards were becoming infected by exotic disease entering the food chain. While the Australian Quarantine Service had assessed that there was no risk, the court did not accept that the risk analysis process was consistent with the precautionary principle. It was critical of the World Trade Organisation process as being ‘scientifically-based’. The Court said:

It assumes that science is able to identify risks, and concludes that where there is no evidence of a risk, there is no risk. The evidence is that there is a significant lack of scientific information on disease in non-salmonid marine finfish, and the susceptibility of Australia’s native marine species to exotic pathogens.

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