Privative clauses under ss 35 & 104A of the Environmental Planning and Assessment Act 1979 (NSW) and the implications for public interest environmental litigation

Environmental and Planning Law Journal

Volumn 15, Issue 5, 1998, Pages 362-368

  Joyce, Michelle K ^a  

^a MACQUARIE UNIVERSITY   (Australia)

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EID: 84860411041     PISSN: 0813300X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (45)

1. G Hardin, "The Tragedy of the Commons" in T O'Riordon and RK Turner, An Annotated Reader in Environmental Planning and Management (Permagon Press, London, 1983).
2. Various other NSW statutes also contain open standing provisions. National Parks and Wildlife Act 1974, s 176A
3. Wilderness Act 1985, s 27
4. For refutations of the "floodgates" argument in relation to open standing provisions, see Phelps v Western Mining Corporation Limited (1978) 33 FLR 327 at 333-334 per Deane J and Ogle v Strickland (1987) 13 FCR 306 at 315 per Lockhart J.
5. J Toohey and A D'Arcy, "Environmental Law-Its Place in the System" Proceedings of the International Conference on Environmental Law (Sydney, 14-18 June 1989), p 81.
6. See Jones v National Coal Board [1957] 2 QB 55 at 63 per Denning LJ.
7. For example, Mahoney JA in Coffs Harbour Environment Centre Inc v Minister for Planning (1994) 84 LGERA 324 at 341-342, recognised that the applicant was challenging the technical validity of a statutory instrument for the purpose of achieving an environmental result, but stated that the court could only look to the technical validity of the instrument.
8. (1985) 66 LGRA 306 at 313 per Street CJ. The Minister's Second Reading Speech on the Bill which eventuated in the 1985 amendment to s 35 (which aimed to preclude all challenges, whether procedural or substantive in nature) and the insertion of s 104a, stated that the amendments were to include "(p)rovisions to impose reasonable time limits on challenges to environmental planning instruments and development consents, which enable greater certainty in the development process" in Hansard, 26 November 1985 at 10638.
9. Coles Supermarkets Australia Pty Limited v Ministerfor Urban Affairs and Planning (Coles) (1996) 90 LGERA 341 at 350 per Pearlman CJ.
10. PW Rygate and West v Shoalhaven City Council (PW Rygate) (1996) 91 LGERA 417 at 423 per Pearlrnan CJ.
11. Woolworths v Bathurst Citv Council (1987) 63 LGRA 55
12. Calkovics v Minister for Local Government and Planning (Calkovics) (1991) 72 LGRA 269 at 272 per Stein J. It is important to note that only Yadle expressed the ratio decidendi that judicial review was not precluded after 3 months when there was jurisdictional error. " (1996)91 LGERA 417.
13. R v Hickman, Ex parte Fox and Clinton (1945) 70 CLR 598.
14. D Fisher, "The Structural and Conceptual Framework of the Draft Integrated Planning Bill", Queensland University of Technology Public Seminar on the Draft Integrated Planning Bill, held 18 September 1997, at 4 and 12
15. Galpin D, "Time Limitations on Land and Environment Court Actions" (1994) 44 IMPACT 5 at 5
16. Local Government Planning and Environment NSW, Butterworths Looseleaf, Volume C, October 1997, Bulletin I at 28.
17. North Sydney Council v North Shore Properties Pty Limited (unreported, No 40003/96, LEC, Bignold J, 3 April 1996)
18. Bignold J derived much of the reasoning for this approach from the English cases of Smith v East Elloe Rural District Council [1956] AC 736 and R v Secretary of State for the Environment
19. (1996) 90 LGERA 269 at 281 per Bignold J.
20. D Fisher, "The Structural and Conceptual Framework of the Draft Integrated Planning Bill", Queensland University of Technology Public Seminar on the Draft Integrated Planning Bill, held 18 September 1997, at 4 and 12
21. (1996)91 LGERA 417 at 424.
22. A Fogg, "Red Tape Slash & Burn-or too complex?", Queensland Environmental Law Association Seminar on the Draft Integrated Planning Bill, held 27 September 1997, at 2.
23. (Unreported, No 40323/97, NSW Court of Apeal, 22 December 1997).
24. See Ostler [1977] QB 122 at 13 8 per Goff LJ.
25. LH Leigh, "Time Limit Clauses and Jurisdictional Lrror" [1980] Public Law 34 at 51.
26. M Allars, Introduction to Administrative Law (Butterworths, 1990) at 234. However, an analysis of privative clauses in general indicates that more specific and limited privative clauses are more effective.
27. See M Aronson and B Dyer, Judicial Review of Administrative Action (LBC Information Services, 1996), pp 962-976.
28. (1997) 143 ALR 55.
29. D Fisher, "The Structural and Conceptual Framework of the Draft Integrated Planning Bill", Queensland University of Technology Public Seminar on the Draft Integrated Planning Bill, held 18 September 1997, at 4 and 12
30. (1995) 184 CLR 163
31. (unreported, No 40323/97, NSW Court of Apeal, 22 December 1997) at 5 per Stein JA.
32. (1991) 72 LGRA 409 at 413.
33. Jurisdictional error occurs when the decision maker misapprehends the limits of its powers and acts in excess of its authority.
34. Error of law on the face of the record occurs when the decision maker has the power to decide, but does not decide in accordance with law and this error appears on the face of the record.
35. (1995) 184 CLR 163
36. Local councils usually grant development consents: s 91 EP&A. The local council prepares, and the Minister for Urban Affairs and Planning makes a Local Environmental Plan: ss 55, 61, 70 EP&A. The Director-General of the Department of Urban Affairs and Planning prepares and the Minister makes a Regional Environmental Plan: ss 40, 44, 51, EP&A. The Director-General prepares, the Minister recommends and the Governor makes a State Environmental Planning Policy: ss 37
37. EP&A. Since all of these authorities are not courts of law, they fall within the ambit of "administrative tribunal".
38. (1996) so LGERA 269 at 284.
39. Public Service Association (SA) v Federated Clerks' Union of Australia (SA Branch) (1991) 173 CLR 132 at 160 per Dawson and Gaudron JJ.
40. World Series Cricket Pty Limited v Parish (1977) 16 ALR 181 at 189 per Bowen CJ, where the Federal Court was faced with the issue of whether to grant an injunction when the objector was accused by the appellant of being guilty of laches.
41. BJ Preston, "Laches in Public Interest Litigation" (1986) 3 EPLJ 224 at 225.
42. For example, the application for an injunction in the case of Oshlack v Iron Gates Pty Limited (unreported, No 40152/1996, LEC, Talbot J, 11 July 1996) was initially hindered by Richmond River Council's refusal to provide the Environmental Defender's Office with a copy of the development consent, even though it was required by law to do so.
43. The Environmental Defender's Office has alleviated this problem to an extent.
44. A Fogg, "Red Tape Slash & Burn-or too complex?", Queensland Environmental Law Association Seminar on the Draft Integrated Planning Bill, held 27 September 1997, at 2.
45. G J Knight Pty Limited v Warringah Shire Council [1975] 2 NSWLR 796.