Section 68 of the Environment Act 2000 gives a right of review to the Environment Council, and section 69 deals with stopping the decision from taking effect in the meantime.
Section 68(1) — who may apply for review
A person who is dissatisfied with a decision of the Director under this Act, in relation to an application made by that person or in relation to an activity carried on by that person, may apply for a review of the decision by the Council.
The right belongs to the person whose application it was, or who carries on the activity. It is not a general public right of review. A neighbour, a landowner group or an NGO dissatisfied with a permit granted to someone else does not have standing under section 68.
Their routes are different: making submissions during public review under section 55; asking the Provincial Environment Committee to comment under section 54(5); and, where a decision is affected by legal error, judicial review in the National Court under Order 16 of the National Court Rules and section 155(4) of the Constitution, read with section 59 and section 41 of the Constitution.
What can be reviewed is wide: a decision of the Director under this Act. That includes refusal of a permit, the conditions attached to one, an amendment decision under section 71, a suspension or cancellation under section 72, and the deemed refusal of an environmental impact statement under section 56(3), which section 56(3) expressly attracts to section 68.
Section 68(2) — the 21-day limit
An application for review must be lodged with the Director within 21 days after the day on which the decision was notified to the person or to the public.
And the operation of the decision may be suspended on receipt of the application until the review is determined.
Twenty-one days is short, and the clock runs from notification to the person or to the public — so a public notification can start time running even if you were not served personally.
Note also that the application is lodged with the Director, not with the Council, even though it is the Council that decides it.
Section 68(3) — how the Council conducts the review
(a) the Council shall determine its own procedures;
(b) the Director shall absent himself from consideration of the review; and
(c) another member of the Council shall act as temporary Chairman during his absence and for the purposes of determining the review.
Paragraphs (b) and (c) are the statutory answer to an obvious objection: the Director is the ex officio Chairman of the Council under section 17(1)(a), and it would be untenable for him to sit on a review of his own decision. This is the natural justice requirement in section 59 of the Constitution — the duty to act fairly and to be seen to act fairly — written into the Act.
The Regulations prescribe the form of the application, the information to accompany it, requirements for service or notification, and other matters (s 68(5)).
Its four other members hold expertise in environmental chemistry or engineering and waste management, environmental policy or law, sustainable resource use and economic management, conservation and biodiversity, and socio-economics and social impact assessment — see who administers the Act. A review submission should be pitched to that expertise, with evidence rather than assertion.
Section 68(4) — appeal on a question of law
Where a person who was a party to a review before the Council is dissatisfied with the Council’s decision, he may appeal to the National Court on a question of law within 28 days of that decision.
Two limits. The appeal lies only on a question of law — not on the merits or on the weight given to evidence. And only a party to the review may appeal, so the section 68 review is a necessary first step.
Typical examples include: failing to take into account a matter section 65(3) or section 58(2) requires to be considered; taking into account an irrelevant matter; misconstruing a provision of the Act; acting without evidence capable of supporting the finding; and breaching the requirements of natural justice.
Section 69 — stay of the original decision
Where an application for review is made and the operation of the decision is not suspended under section 68(2), the applicant may apply to the National Court for a stay.
Where the Court is of the opinion that a stay is necessary to preserve the effectiveness of the review, it may order that the operation of the decision be stayed.
A stay has effect for the period the Court states and may be subject to conditions; it shall not extend past the time when the Council reviews the decision, plus any later period the Court allows to enable an appeal against the Council’s decision.
“Necessary to preserve the effectiveness of the review” asks whether, without a stay, the review would be pointless because the thing complained of would already have happened — clearing done, plant installed, discharge commenced. Evidence going to that point is what a stay application needs.
If you want to challenge a decision
- Get the written reasons. Sections 56(2), 58(4), 59(2) and 72(4) each require reasons in writing.
- Check your standing — was it your application, or your activity?
- Diary 21 days from notification to you or to the public.
- Lodge the review application with the Director, in the prescribed form.
- Ask for the decision to be suspended under section 68(2) when you lodge.
- If it is not suspended, consider a stay in the National Court under section 69, with evidence of what will happen without one.
- Build the review submission around the statutory criteria — sections 65(1) and 65(3) for a permit, sections 56(1) and 58(2) for an impact statement.
- Preserve the appeal — identify the questions of law as the review proceeds, and diary 28 days from the Council’s decision.
- If you have no standing under section 68, consider judicial review and get advice from the Public Solicitor or a firm from the law firms directory.
Sources
- Environment Act 2000 — ss 17, 54–59, 65, 68, 69, 71, 72
- Constitution — ss 41, 59, 155(4)
- Conservation and Environment Protection Authority Act 2014
Before relying on anything here, read the current text of the Environment Act 2000 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.