Standing to enforce environmental laws

Page type:: Article
Category:: General framework
Jurisdiction:: Victoria, Commonwealth
Page rating:: 7

What is 'standing'?

Standing (sometimes called locus standi) is a legal concept that determines who is permitted to bring a legal case. A person who 'has standing' may bring a case. A person who does not have standing usually cannot.

Why does standing matter?

Standing matters because it affects people's access to justice and the enforcement of environmental laws. In some cases, a person who wants to bring a case to enforce some environmental law may be unable to do so, because they lack standing. In some cases, no one who wishes to sue may be able to do so, even where there is a clear violation of the relevant laws.

Example: Australian Conservation Foundation Inc. v Commonwealth of Australia

In Australian Conservation Foundation Inc. v Commonwealth of Australia, the ACF sought to challenge a decision of the Commonwealth government allowing a development at Farnborough in Queensland. The Environment Protection (Impact of Proposals) Act 1974 (Cth) required the preparation of an environmental impact statement (EIS) in accordance with certain Orders-in-Council. Justice Stephen said in his judgment that the EIS prepared by the Commonwealth did not comply with the relevant Orders. Since the ACF did not have standing, however, it was could not challenge the approval, even where there was non-compliance with the relevant law.

When does a person have standing?

A person will have standing when they have the right kind of interest in the case. What kind of interest a person must have depends on the kind of case they want to bring and the kind of remedy they want. The most common situations are discussed below.

Common law standing

The common law standing rules apply to the majority of cases, including applications for judicial review in the Victorian Supreme Court. Unless a particular piece of legislation applies different standing rules, then the common law rules will apply.

The common law standing rules are fairly narrow. Typically, they grant standing to people with an economic or property interest in the subject matter of the case. For example, if the government makes a decision to build a road across a property, then the owner of that property will usually be able to challenge that decision.

The common law has been less prepared to recognize other interests, such as environmental interests, as granting standing. In Australian Conservation Foundation Inc. v Commonwealth of Australia, discussed above, Justice Gibbs stated:

I would not deny that a person might have a special interest in the preservation of a particular environment. However, an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi. If that were not so, the rule requiring special interest would be meaningless. Any plaintiff who felt strongly enough to bring an action could maintain it.

In rare circumstances, however, the common law has granted standing for non-economic, non-property interests.

Examples: Onus v Alcoa and National Trust of Australia (NT) v Minister for Lands, Planning and Environment

In Onus v Alcoa, Alcoa sought to construct an alumina refinery on land sacred to Aboriginal peoples. The High Court unanimously held that members of the Gournditch-jmara people had a particular spiritual - historical interest in the relevant land and so they had standing to challenge the construction.

In National Trust of Australia (NT) v Minister for Lands, Planning and Environment, the National Trust was granted standing to challenge the proposed demolition of an historic building, the former Alice Springs jail.

A third situation where the common law grants standing is where a statute grants a person a right. In that case, the common law may grant the same person standing to ensure that right is respected.

Example: Sinclair v Maryborough Mining Warden

In Sinclair v Maryborough Mining Warden, a mining company applied for two mining licenses over parts of Fraser Island in Queensland. The Mining Regulations in force at the time permitted persons to object to the grant of mining licenses. Mr. Sinclair lodged objections to both applications. The local Mining Warden granted both applications over those objections. Mr. Sinclair then challenged the decision of the Mining Warden, saying that it had not been made in accordance with the relevant law. In the High Court, Chief Justice Gibbs stated that Mr. Sinclair had standing to sue because his exercise of his right to object under the Mining Regulations gave him an interest in seeing that lawful decision making procedures were followed.

In the recent decision of Environment East Gippsland Inc. v VicForests, Justice Forrest of the Victorian Supreme Court stated that the test in North Coast Environment Council (discussed below) was 'the gold standard' and applied it to find that it was at least arguable that Environment East Gippsland had standing to challenge the legality of logging undertaken by VicForests. If this decision is followed in other Victorian cases, it signals a broader approach to standing that may benefit environmental groups.

Standing in the Victorian Civil and Administrative Tribunal

The Victorian Civil and Administrative Tribunal (VCAT) is allowed to review certain government decisions. In order to have a decision reviewed, a person who has standing must apply to have that decision reviewed. A person has standing in VCAT in one of two circumstances:

When legislation states that a particular person has standing.

Example: Section 77, Planning and Environment Act 1987

An applicant for a permit may apply to the Tribunal for review of a decision by a responsible authority to refuse to grant the permit.

When legislation states that a person whose interests are affected has standing.

Example: Section 33B(1), Environment Protection Act 1970

If the Authority or a delegated agency-

(a)	issues a works approval; or

(b)	issues a licence on an application to which section 20(8) applies; or

(c)	amends a licence on an application to which section 20A(6) applies; or

(d)	removes the suspension of a licence-

a person whose interests are affected by the decision (other than the applicant or licence holder) may apply to the Tribunal, within 21 days after the decision is made, for review of the decision.

Section 5 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act) defines 'interests' broadly, meaning that more people have standing to seek review of a decision at VCAT than under the common law.

Key section: Section 5, VCAT Act

If an enabling amendment provides that a person whose interests are affected by a decision may apply to the Tribunal for review of the decision -

(a)	“interests” means interests of any kind and is not limited to proprietary, economic or financial interests;

(b)	the person may apply to the Tribunal whether the person's interests are directly or indirectly affected by the decision and whether or not any other person's interests are also affected by the decision.

Standing in Federal Judicial Review

The Administrative Decisions (Judicial Review) Act 1977 (Cth) allows a 'person who is aggrieved' by Federal government decisions to challenge the process by which the relevant decision was made. The review of government decisions by the courts is known as judicial review. Because the purpose of this Act is to allow ordinary people to challenge government decisions that impact them, the Federal Court has taken a broader than usual view of standing in interpreting it.

Example: North Coast Environmental Council v Minister for Resources

In North Coast Environmental Council v Minister for Resources, the NCEC challenged a decision by the Minister to grant a wood chip export license. In ruling that the NCEC had standing to challenge the decision, Justice Sackville held that the phrase 'person who is aggrieved' should not be interpreted narrowly and included people whose interest in the decision was not a recognized financial or property interest.