Page 5500 - Week 15 - Wednesday, 9 December 2009
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in class 4 of the court’s jurisdiction in the years 1989 to 1995. In an article in the Environmental Planning and Law Journal, he observed that there had not been any obvious growth in the use of “open standing” provisions over the seven years and concluded that section 123 had not caused the “floodgates” to open. He also noted that any analysis of relevant filings would include unknown applicants who would have had common law standing in any event.
Justice McClellan agreed with Justice Stein and said:
… the analysis undertaken of various cases over the 25 years since the Act commenced operation does not suggest that a “flood of cases” has come to the court which could not have been brought but for the provisions of s 123. There are some cases where standing may have been an arguable issue and some where it may have been denied, but many cases and probably most cases would fall within the common law principles defined by the Australian High Court as they have more recently been applied …
Any fears that open standing will encourage proceedings which have the potential to destabilise orderly government have been unfounded …
There is no doubt that proponents of individual projects which have been challenged in the court feel a sense of frustration. Very often the challenge has been to the actions of the government authority obliged to consider the environmental merit of the project and where the proponent has little or no control over the quality of the authority’s actions. If the assessment of the project is found to be legally wanting, significant issues with respect to the exercise of the court’s discretion arise. On one occasion the plaintiff succeeded in proving that a major sewerage project was being undertaken without the necessary environmental assessment. Having regard to the advanced stage of the project when proceedings were commenced and the community benefit from a coordinated sewerage scheme the court declined to intervene … A similar outcome occurred in Liverpool City Council v Roads and Traffic & Anor where the council proved that a proposed major roadway had not been assessed as required by the Act but the Court declined to grant relief …
As well as these three more substantive issues, my bill contains a number of amendments relating to how notices on decisions are served, as well as clarification on ACAT having the ability to extend the review period at its discretion in line with reviewable decisions under other legislation whereby the extension of this period can happen in limited circumstances and ACAT must set out reasons for granting such an extension.
There is a new provision that the decision maker must also take reasonable steps to give a reviewable decision notice to any other person whose interests are affected by the decision. Interests of people who are affected by a decision may be far broader than interested entities, which are more narrowly defined.
The reviewable decision notice must also be given to eligible interested entities, as is current. Entities who are “interested” and “eligible” to appeal are outlined in schedule 1.
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