20 Aug 2015

De-risking environmental and planning decisions: getting the process right

by Kathryn Pacey

Whether you are an applicant, an assessing officer or the decision-maker, there are steps you can take to protect environmental and planning decisions from a successful legal challenge.

Administrative decisions on environmental or planning approvals are under increasing scrutiny, and errors in the decision-making process can derail a project, as was recently shown by the consent order of the Federal Court in the Carmichael Mine case. What can applicants, assessing officers and decision-makers do to avoid these errors, and reduce the risks of a successful legal challenge, increased costs and delay?

Challenging environmental and planning decisions via judicial review

Most (but not all) environmental and planning decisions are challenged by judicial review. Decisions under the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 can be subject to judicial review proceedings under the Administrative Decisions (Judicial Review) Act 1977, (with broadened standing provisions) and many State decisions are subject to its local equivalent.

Appeals against merits are relatively confined, but they can sometimes be made. An example is impact assessable development applications under the Sustainable Planning Act 2009 in Queensland; the Planning and Environment Court steps into the shoes of the decision-maker, and remakes the decision.

In judicial review proceedings, the court is generally cautious not to stray into a review of the merits of the case. It won't consider whether the decision is the "right" decision, or whether it agrees with the decision ‒ the court only considers whether the decision was made according to law.

What are the danger points in the decision-making process?

The common grounds of review that are raised in the case of the environmental and planning decisions are:

  • failure to take into account a relevant consideration: where the statute identifies what must be considered, and the decision-maker fails to consider the relevant criteria. For example, challenges to decisions under the EPBC Act have succeeded where the Minister failed to consider the environmental impact statement, required conservation advices and the indirect impacts of an action;
  • taking into account an irrelevant consideration: where the decision-maker considers a matter that is either irrelevant to the decision, or is precluded by the statute;
  • blind application of policy: that the decision-maker blindly applied government policy, and did not give "proper, genuine and realistic consideration to the merits of the case, and… in a proper case depart from any applicable policy";
  • unreasonableness: this is a notoriously difficult ground to establish ‒ the decision-maker must be shown to have made a decision that was so unreasonable that no reasonable person could have made it;
  • failure to afford natural justice: particularly where expert reports or adverse advice is obtained, decision-makers should be careful to ensure that those whose interests are significantly adversely affected have a chance to respond.

So how can you protect a decision on an environmental or planning application?

Like any risk management process, environmental and planning decisions can be protected by:

  • understanding your risk; and
  • taking steps to respond to those risks.

Whether you're an applicant, assessing officer, briefing officer or decision-maker, you should know the answers to these questions:

What are the avenues of legal challenge to the decision or approval?

What is the risk of legal challenge?

Who are your likely opponents? Think local, regional and global. Think neighbours, competitors, interest groups.

Where is the application vulnerable? Consider whether there are key unknowns, significant impacts that cannot reasonably be avoided or mitigated or whether the application is contrary to policy;

Has the process for making the application, notifying the application and making the decision been followed?

What are the decision-making criteria that must be considered and addressed, and what information, evidence or other material is required to support the decision? If you are an applicant, make sure the application addresses this to the extent possible; if you are briefing a decision-maker, make sure this is included in the brief. If you are the decision-maker, make sure you understand the criteria you must consider, make sure it is in front of you, and give it genuine consideration.

If you're a decision-maker, consider whether reasons should be prepared at the same time as the decision, particularly for contentious projects. Most judicial review proceedings are preceded by a request for a statement of reasons. A statement of reasons (or "grounds") is a technical document that must meet a number of requirements. If you are responding to a request for a statement of reasons, ensure you understand who is asking (not everyone is entitled to reasons) and that the relevant requirements are met in the response.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.