Specialist Environmental Courts: The Land and Environment Court of New South Wales,Australia

Abstract

In 1979 the establishment of a Land and Environment Court in New South Wales provided the opportunity for a new substantive and procedural approach to planning and development. This court has the status of a superior court of record, of equivalent status to the Supreme Court and subject only to appeal to the Court of Appeal. It acts as a ‘one-stop shop’, dealing with all land and environment matters, and the procedural rules endeavour to ensure streamlined hearings and prompt decisions. Cases are heard by commissioners either singly or in panels of two, and may refer matters of law to a judge for an immediate answer. The court also deals with environmental crime, and may impose penalties of fines and imprisonment. As it is still councils and state agencies that bring the majority of applications for civil enforcement and judicial review, the court has attempted to reduce some of the procedural barriers that may deter individuals and non-governmental organisations. Initial objections to the open standing provisions appear to have been overcome; to avoid complex technicalities the court has no formal pleadings; the open provision of documents from the outset is encouraged; and the use of preclusive certificates appears to have diminished. The court also has discretion as to the award of costs, and in some cases the fact that an applicant was acting in the public interest has been taken into account. On matters of substantive law the court has been called on to construe and interpret the meaning of all environmental law; it has dealt with cases of biodiversity, protecting old growth and rain forests from logging, and supporting core principles of ecological sustainability. It has also emphasised public participation rights and challenged the ability of corporations in pollution cases to refuse to produce documentary evidence that might incriminate them. Alternative dispute resolution has been an available option. A well-qualified specialist court such as the Land and Environment Court, with exclusive jurisdiction on environmental matters, seems to offer the best chance of successfully administering environmental law at a judicial level.