Public participation and third parties have been deep rooted in planning law since it’s earliest beginnings. It is said to be “central to the practice, legitimacy and dominant normative principles” of planning. However, policies designed to quicken to approval processes are currently in place across many Australian jurisdictions, leaving public participation chances, including third party rights, limited.
Madeleine Figg, in her 2014 paper “Protecting third party rights of appeal, protecting the environment: A Tasmanian case study” states that third party rights in environmental and planning law typically allow individuals or public interest groups to seek judicial review of decisions, enforce environmental protection legislation, or appear decision via merits review. In the context of planning decisions, merits review-based appeal rights are available to proponents of developments to review decisions made by the relevant planning authority in all States and Territories. Appeal rights of third parties, however, are not so widely available. In Western Australia, third party rights are limited and depend on whether the relevant planning scheme can be taken to confer appeal rights. The public (i.e., third parties, objectors, etc) has no right of appeal under most legislation and even where the public is entitled to object/appeal, that right is often sharply curtailed or conditioned in such way to frustrate exercise of that right. Section 211 of the Planning and Development Act 2005 (WA) grants any person aggrieved by the failure of a local government to enforce or act in accordance with a scheme to request the Minister to consider the matter. From time to time, the scope of section 211 is challenged by persons aggrieved by the action or inaction of their local government in a particular planning matter. However, this provision is not intended to operate as a third party appeal right but rather is there for serious or significant acts or omissions by the local government which have the effect of not enforcing the relevant local planning scheme. In the 2013, the Department of Planning launched a review, reviewing the Planning and Development Act 2005 (WA). They proposed to further specify the scope and process under section 211 to ensure that it is not used as a form of third party appeal right. Under Federal law, less applicable legislation and most constraints are impediments rather than prohibitions. The Public has no or sharply reduced right of appeal/review of many environmental and planning decisions in WA. Examples:
• – Development approvals under PD Act
• – Works approvals and pollution licences under EP Act Part V
• – Water use permits/authorities under RIWI Act
• – Significant aspects of environmental impact assessments under EP Act Part IV
• – Fish processing and aquaculture under FRM Act
• – Dealing in GMOs under GT Act (and Cth analogue)
• – Petroleum/energy tenements under PGER Act
Another major constraint under Western Australian law is exclusion of members of the public from enforcement and compliance actions under planning and environmental laws. Except for one exception, there are no provisions for public to directly enforce compliance with planning or environmental approvals or conditions of approvals. All planning and environmental legislation has provisions for offences, however, only government bodies (state agencies, local government, police) have any authority to bring action for offences. The one exception this this is private prosecution for unreasonable noise emissions under the Environmental Protection Act 1986 (WA), s 79(2).
Another lesser but still major constraint in Western Australia is the short time frame for public to participate in planning and environmental proceedings. For example, there is a limited time frame for public to submit comments on significant proposals to Environmental Protection Authority. The initial comment period on section 38 referrals is just 7 days. There are also limitations on the public’s right to object to works approvals and pollution licences under the Environmental Protection Act Part V. Under this part of the legislation, there is 21 days to object , however, objections are limited to conditions only. There is no right to object to grant of works approval or pollution licence. There are also limitations on public right to make administrative appeals under the act, where only 14 days are given to object to the Office of Appeals Convenor.
There are also constraints under the Commonwealth on public rights in planning law. The predominant Commonwealth legislation on environmental and matters is Environment Protection and Biodiversity Conservation Act 1999 (Cth) . The key constraint is set out in section 75 of the act which states that the Commonwealth Environment Minister is not obliged to consider referrals from members of the public. Referral requires the Commonwealth Environment Minister to determine whether a proposed or ongoing action is a “controlled action”, subject to Commonwealth assessment and approval, because of potential significant impact on matters of national environmental significance.
While numerous offence provisions lie under the Environment Protection and Biodiversity Conservation Act, another major constraint under the Commonwealth legislation, as in Western Australian legislation, the public has no right to bring enforcement action for noncompliance with approvals or conditions of approvals. However, in contrast to the Western Australian legislation, the Environment Protection and Biodiversity Conservation Act, does allow the public to bring action for injunctive relief to restrain unapproved ‘controlled actions’ or approved actions that violate terms and conditions of approval. The Act also allows the public to seek an order requiring the wrongdoer to restore and remedy the environment. However there are still some major drawbacks, including the undertakings for costs and economic loss.
Both Commonwealth and Western Australian freedom of information acts officially recognise, endorse and allow public rights to information held by government bodies. In reality though, both freedom of information acts are filled with provisions that, delay access to information, limit information provided through various provisions, impose significant costs on the public for seeking such information, allow for interminable reviews/appeals of access decisions and make no provision for review/appeal of interim or ‘in process’ decisions.
In addition to constrains on public participation imposed by legislation, individuals and community groups seeking to participate in planning, environmental matters face significant constrains imposed by Common Law Practice in Australia. Firstly, the English Rule regarding costs orders. Secondly, the scope of judicial review in environmental and planning matters. Thirdly, ‘special interest’ standing requirements and needless complexity in rules of standing in ‘equitable’ v legal matters. Fourthly, the requirement of undertakings and security for costs in injunctive proceedings. The need (in some jurisdictions) for barristers and solicitors.