1. Third party appeals & Community Activism
Henry Jackson Barrister Francis Burt Chambers

2. So, here we are again…
‘Public Participation in Planning & Environmental Approvals’, WA NELA State Conference, 2010
‘Fairness requires that people have the right to participate in decisions that affect them’
‘Public participation improves decision making and improves the integrity of the system’

3. But it’s not just me …
‘…the adoption of third-party appeal rights in Western Australia is inevitable’ – Judge Christine Trenorden, Senior Judge, Environment, Resources & Development Court, South Australia, 18/ 11/ 2009
The WA Legislative Council, Standing Committee on Legislation (March 2009) ‘Inquiry into the Jurisdiction and Operation of the [SAT]’ recommended:
extend right to 3rd parties to initiate an application to the SAT for review of the grant or refusal of planning approval or the conditions imposed or the amendment, revocation or suspension of a planning approval: Recommendation 18
extend right to 3rd parties to be joined as party in planning SAT reviews initiated by the applicant: Recommendation 19
extend right to 3rd parties to initiate applications for SAT review of the granting of works approvals and licenses: Recommendation 20

4. There are very good arguments in favour of it
Greater community confidence in the system
Better decisions due to:
multiplicity of perspectives
rigour in decision making
Transparency
Accountability

5. The EP Act already allows some 3rd party appeal rights (and the sky hasn’t fallen in!)
Under the EP Act, 3rd parties may appeal (to the Minister) against:
Various matters under Part V:
The grant of a clearing permit: s 101A(4);
The imposition of a condition with which they disagree in a works approval, licence or clearing permit: ss 101A(3)(a) and 102(3)(a);
The amendment of a works approval, licence or clearing permit: ss 101A(3)(b) and 102(3)(b);
The imposition of a condition in or the amendment of a closure notice, environmental protection notice, vegetation conservation notice or prevention notice: s 103(2).
Various matters under Part IV:
A decision of the EPA not to assess a proposal: s 100(1)(a);
Content of or recommendation in a report by EPA under s 44 (proposal) or s 48A (scheme): s 100(1)(d).

6. The arguments against 3rd party appeals
Taken from Parliamentary report into SAT [2.450] & [2.452]: submission of WAPC (ie limited to the planning regime)
‘the time for the democratic intervention is in the setting of policy and rules by which developers and builders … must conform’ (‘industry needs certainty’)
Somewhat disingenuous & unreasonable burden on the public
Implications of policy changes may not be understood until a proposal is made
‘[a]ny changes may have complex implications and would therefore require extensive consultation and investigation’ (‘its all too hard’)
‘complicate contractual relationships between a successful developer … and parties contracting to that developer’ (‘?!?!’)
‘opportunities for unreasonable or vexatious third parties to cause commercial or personal damage to developers’ (‘ratbaggery’)
Must acknowledge the potential (but it’s a small risk that can be managed)

7. Why the failure? Industry opposition
LNP resistance: Ministers for Planning Kierath (13/09/2000) and Day (4/10/2010). ALP reticence: Minister MacTiernan (28/3/2006).
Planning – departmental resistance (2009 Parliamentary review – may simply reflect Government policy at the time; certainly consistent with it)
The time may have passed…

8. What can be done? The cause is right and it ought not to be forgotten
A new Government provides an opportunity
Previous overreach may cause a rethink - WALGA Discussion paper:
To succeed, there must a commonality of purpose and vision across a multiplicity of interest groups, one of which must be NELA
Focus on the resulting improvement in decision making processes and decisions
Acknowledge and address the contrary position –additional cost and delay will result for some (but not most) projects. The benefits to the system outweigh the costs faced by a small proportion of developers.

9. Some things to think about…
What decisions ought to be the subject of 3rd party review?
Planning/ environmental/ water
Who is a ‘third party’?
Anyone at all? Someone who has previously objected? Someone with a ‘special interest”?
What impact does that have on advertising/ notification etc?
Does the test alter depending on the decision/ on the proposal?
What review body? Minister/ SAT/ Environmental Court/ Specialist tribunal?

10. Some (other) things to think about…
EIA/ Part IV
Public participation in EIA
Can the process be improved to create better decisions?
Would public hearings for State significant proposals be useful?
(Existing 3rd party) appeals against EPA report:
Is there a role for them at all (in light of EPA’s statutory independence and expertise?)
If so, is a political entity (ie Minister) the proper body to consider them?
If not, is a general body (ie SAT) suitable or does the nature of the decision/ recommendation require a specialist body?
Either way, does an appeal body other than the Minister impact on the Minister’s role as final decision maker?

11. Some (other) things to think about …
The Ministerial decision under s 45 of the EP Act
Is the Minister’s ongoing role justifiable?
If so, for what? What types of proposals justify political factors overwhelming environmental ones? (cf call -in power from SAT)
If the Minister retains a role, should s/he have to provides ‘reasons’ (in the administrative law sense) for his/her decision?
What criteria ought the Minister have to satisfy before approving a proposal contrary to an EPA recommendation?