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What if a decision maker makes a decision you do not agree with? How can you challenge a decision made by a government agency?

In some cases there will be opportunities to have the decision changed. Depending on the circumstances, options may include:

 

Resolving the matter without legal proceedings

Sometimes litigation is the only way to prevent environmental harm.  However, in the vast majority of cases, legal actions may not deliver direct environmental benefits.  Litigation is also expensive, stressful and time consuming.  For these reasons, it is important to consider a range of options before resorting to legal action.

Before you consider taking legal action against the person you think is responsible for the damage, think about what other options there may be to solve the problem more quickly, more amicably, and with less expense.

  • You may be able to resolve the issue informally by contacting the department or decision maker
  • There may be an internal review process within the Department
  • The Ombudsman or Integrity Commission may be able to review the decision
  • In some instances, an independent mediator may be engaged to help negotiate an outcome

Contact the relevant agency

Depending on the issue, for some decisions easiest place to find out an internal review process within the agency or Department itself. Often the easiest way to resolve a situation is simply to approach the person causing the problem and discuss it with them. It is surprising how many people avoid doing this.

It could be that the person did not know that their activity was causing harm, and on becoming aware of your concerns, may agree to modify their activities.

Similarly, it is well worth contacting community bodies operating in the local community, such as Coastcare groups, Waterwatch and progress associations. Because of their established links within the community, they may help to resolve the problem amicably, avoiding expense and conflict.

Make a complaint to the Ombudsman

If a government agency refuses to take action when it should, you may take the matter to the state (or federal) Ombudsman, who has the power to investigate the issue and pressure the agency to take appropriate action.

The role of the State Ombudsman is to investigate and resolve complaints about Tasmanian state or local government administration.  The Commonwealth Ombudsman is to perform this function for Australian Government agencies.

Complaints can be made by phone, online, in writing or in person. It can often be helpful to call the office of the Ombudsman and discuss your issue. Officers will often be able to quickly tell you if the matter is one which the Ombudsman will be able to help with.

For more information on making a complaint see:

Contact the Integrity Commission

The Integrity Commission was established under Tasmanian law in 2010. Its objectives are to improve the ethics of public authorities in Tasmania. One of the ways it does this is by receiving allegations and complaints of misconduct about public officers.

The Integrity Commission has published a guide describing what “misconduct” is, and who can make a complaint: Guide to making a complaint to the Integrity Commission.

Mediation

Going to court is not the only way of resolving a dispute. There can be issues with going to court such as having to pay the other side’s legal costs if you lose. Alternative dispute resolution such as mediation can help people find a solution where both parties are happy. It can also avoid the need for lawyers and complicated legal processes.

The most common form of alternative dispute resolution in environmental matters is mediation.

Mediation is where an independent “mediator” helps guide two parties to reach an agreement. For more information on mediation, click here.

You can find out how to contact other mediation services from the Yellow Pages. You can also contact the Hobart Community Legal ServiceLaunceston Community Legal Centre or EDO Tasmania for a referral.

 

Legal proceedings

The court system can be very complex – which court you need to commence proceedings in will depend on the decision that is being challenged.  In Tasmania, many environmental laws allow decisions of a local council or government agency to be challenged in the Resource Management and Planning Appeal Tribunal.  Forestry and mining decisions are open to limited challenge in other forums – the Forest Practices Tribunal and the Mining Tribunal, respectively.

Decisions made in these Tribunals can be appealed to the Supreme Court on a matter of law, and further appealed (with consent from the court) to the Full Court or the High Court.  Judicial review applications (see below) are also commenced in the Supreme Court.

Where the decision being challenged has been made by a Commonwealth government agency, appeals are generally to the Administrative Appeals Tribunal or the Federal Court, depending on what the relevant legislation provides for.

court system

Filing an appeal  

As outlined above, many decisions made under Tasmania’s environmental laws can be appealed to the Resource Management and Planning Appeal Tribunal.

** Strict time limits apply for filing appeals (for most appeals, it is 14 days), so be sure to check the relevant statute to make sure you don’t miss the deadline. For more information, click here.

Standing

“Standing” refers to your right to be heard in legal proceedings. Who has standing in relation to an appeal depends on the nature of the appeal, the relevant legislation and the circumstances of the particular case.  For planning decisions, any person who made a representation has a right of appeal.

If someone else has lodged an appeal, and your interests are affected by a decision, you may apply to the Tribunal to be made a party to that appeal. For planning appeals, the Tribunal will not allow you to join the appeal unless:

  • you made a representation, or
  • you have a “proper interest” (see below) and a good reason for not making a representation.

Parties who join an appeal may be restricted to arguing only those points raised by the person who originally appealed. For these reasons, you are in a better position if you institute your own appeal than if you rely on trying to join someone else’s appeal.

Click here for an example application to join an appeal.

Though “proper interest” is not defined in the Tasmanian legislation, some recent cases suggest:

  • You may have a ‘proper interest’ if you have an ‘interest in or connection with’ the land or the issue at stake and that ‘interest or connection’ is greater than that of the bulk of the population. For example, if you take water downstream from the development, you have a specific interest that may be affected by the development more than the general public

  • A conservation group that is active in the subject area and has been involved with the specific issue appealed against may have a ‘proper interest’
  • Merely wanting to uphold the planning scheme or make sure that environmental laws are complied with is not enough to demonstrate a ‘proper interest’ on its own – you need to show some personal connection to the development / activity / site in question
 In practical terms, you may be able to show a ‘proper interest’ in an appeal if, for example:
  • you live or own property in the vicinity of the subject land
  • you have obtained an ‘interest in or connection with the land’ through regular visits to or use of the land (for example, if you walk on the beach each day, you may have a proper interest in a development that will restrict access to the beach)
  • your community group runs a playgroup in a hall that will be demolished as part of the proposed development
  • your community group has been active in rehabilitating and protecting a local watercourse that will be degraded by a proposed development

Standing can be a complicated issue. If you have concerns, you should contact the Environmental Defenders Office for advice about whether you can demonstrate a sufficient interest in the appeal.

** For appeals against decisions to grant a mining lease or exploration licence, only those people who have a proprietary or financial interest in the land can object (See “Mining and Exploration”)

Grounds of appeal

Before lodging your appeal, consider whether you have good grounds for an appeal. If the Tribunal finds your appeal to be frivolous or vexatious, it must dismiss the appeal and may direct you to pay the costs of the appeal (including costs incurred by other parties).

Click here for guidance on what are reasonable grounds of appeal.  It is a good idea to get some advice before finalising your grounds.  Advice is available from:

  • The Tribunal has a referral list of experts willing to offer 15 min free advice
  • Hobart Community Legal Service runs a Planning Aid service offering free advice about the planning merits of cases
  • The Environmental Defenders Office can also provide advice about the legal strength of your proposed grounds of appeal

Click here to see an example planning notice of appeal

Click here to see an example Water Management Act notice of appeal

Because appeals to the Tribunal are “merits reviews“, the Tribunal will re-examine the decision that is the subject of the appeal. That is, it will look at the development proposal and associated considerations as if the first decision had not been made. The Tribunal has the power to make any decision that the planning authority could have made, including imposing conditions on the development proposal, rejecting or approving it.

Mediation

The Tribunal generally requires parties to participate in mediation to attempt to resolve the appeal.  More than half of all planning appeals are resolved by consent agreement.

Running the appeal

Parties do not have to have a lawyer in the Tribunal, however the appeal process can be very complicated. For more information about the process, click here.

EDO Tasmania’s publication, “Going it Alone:  A Guide for Unrepresented Litigants in the Tribunal” is a useful resource if you are going ahead with an appeal without a laweyer.  The Tribunal’s Practice Directions also provide guidance on Tribunal procedures.  It is very important to comply with the Directions to limit the risks of costs being awarded against you.

Costs 

Unlike the ‘usual’ legal position that the party that loses a case is required to pay all or part of the winner’s costs, the presumption in the Tribunal is that each party will bear their own costs, regardless of the outcome. However, the Tribunal may award costs where it is “fair and reasonable” to do so, having regard to the outcome, the relative merits of the issues raised, the behaviour of the parties and the financial position of the parties.

The best way to avoid a costs order is to seek advice about your prospects before commencing an appeal, following all Tribunal directions and ensuring that you are well prepared.  If any other party seeks a costs order against you, you should seek legal advice about how to respond.

 

Judicial review

For many decisions made under Tasmanian legislation, a “person whose interests are adversely affected” by a decision made by a government agency can also apply to the Supreme Court for judicial review of that decision.  In a judicial review, the court does not consider the merits of the decision, only whether the process followed in reaching the decision was appropriate. The Court will consider, for example, whether:

  • the parties were given a fair opportunity to present their case
  • the decision-maker was unbiased and made a ‘reasonable decision’
  • the relevant statutory provisions were correctly applied
  • the decision-maker took into account any irrelevant considerations, or failed to take account of relevant considerations.

In many instances, the outcome of a successful judicial review application is that the decision is sent back to the decision maker to reconsider.

Judicial review actions must be commenced within 28 days of:

  • if reasons are provided with the decision, the decision being made
  • if reasons are not provided with the decision and have been requested by the applicant (see below), the date on which a statement of reasons is provided (or the date on which the agency refuses to provide reasons)

The Supreme Court may accept a judicial review application outside the statutory timeframe in some circumstances.

Commonwealth decisions

For decisions made by the Federal Environment Minister under the Environment Protection and Biodiversity Conservation Act 1999, there are some limited opportunities for judicial review.  Judicial review applications are heard by the Federal Court.

Standing” in relation to judicial review has been explicitly broadened by the EPBC Act – in addition to persons with direct financial or property interests, individuals or organisations who have been engaged in activities to protect the environment during the previous two years and (for organisations) whose objects and purposes relate to environmental protection will be eligible to apply for judicial review.

Statement of reasons 

If you are considering commencing a judicial review proceeding, it is a good idea to obtain a statement of reasons. The statement sets out the reasons why the decision maker made the decision, the evidence that was relied upon and the weight that was given to various considerations. This will help you to assess whether there is a basis to challenge the decision.

The statement giving the reasons for the decision should be provided when you are notified of the decision. However, if the statement of reasons is not provided, you should make a written request for the reasons as soon as possible.  Click here for a sample request for a statement of reasons.

Running a review proceeding

Judicial review actions are often very complex, technical and expensive. It is strongly advisable to seek legal advice before you decide whether to take such action.

For more information, click here.

Costs 

Judicial review applications are subject to the ‘usual’ legal position that an unsuccessful party will be required to pay all or part of the other party’s costs.  These costs can be considerable, making it very important to seek legal advice before commencing proceedings.

Civil enforcement 

A person can apply to the Tribunal for orders requiring a person, company or a government agency to take action, to cease an activity or to rehabilitate harm already done (see “Planning and Development” and “Pollution and Environmental Harm“).  These actions are called “civil enforcement“.

** Strict time limits exist for commencing civil enforcement actions.  You must apply to the Tribunal within 2 years from the date of the unlawful planning activity, or 3 years of unlawful environmental harm.

Standing

A person must have a “proper interest” to commence civil enforcement proceedings.  The Tribunal has taken a reasonably liberal approach to “proper interest” in relation to civil enforcement actions.

Anyone who wishes to apply for a civil enforcement order against another person in relation to a breach of the Land Use Planning and Approvals Act 1993 (for example, not complying with permit conditions) must also demonstrate that they have first issued a Notice of Suspected Contravention of Scheme on the relevant planning authority.  This commences a 120 day window for the planning authority to decide whether or not to take action. You cannot commence proceedings until that time limit has passed, the authority has told you it won’t take any action, or action is taken but you are not satisfied that it has addressed the problem. For more information, click here.

Running a civil enforcement proceeding

Civil enforcement actions are complex, and the onus is on the applicant to demonstrate that a law has been breached.  For detailed information about how to run a civil enforcement proceeding in the Tribunal, click here.

Click here for an example application for civil enforcement orders regarding an environmental harm incident.

Costs

Unlike appeals in the Tribunal, the presumption in civil enforcement proceedings is that the unsuccessful party will pay the costs of the other party / parties.

 

Injunctions

If a government agency is not doing what it should under a particular statute, there may be options to seek orders in the Supreme Court requiring the agency to stop taking the unlawful action.   This is usually done in combination with a judicial review action or appeal.

Similarly, if you are challenging a decision made under the Environment Protection and Biodiversity Conservation Act 1999, you can also seek an injunction to prevent ongoing breaches of that Act. For example, in challenging the decision to re-open 4WD tracks in the Western Tasmania Aboriginal Cultural Landscape on the west coast, the Tasmanian Aboriginal Centre also applied for an injunction to prevent any use of the tracks while the case was being determined.  The interim injunction was granted and no vehicles are permitted on the tracks while the Federal Court determines whether the tracks require approval under the EPBC Act.