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Introduction to Environmental and Planning Law

The Environmental Protection Act 2019 was the first step that was initiated for the protection of environment and making appropriate reforms for the same. It was introduced for the purpose of introducing improvements to the environmental issues and approving a system for the northern territory comparable to other Australian Jurisdictions and in the best practice.

Planning and development Act 2005 is an Act made by the Western Australian Parliament. It lays down specific controls when planning at a metropolitan and local levels as well as making more regulations for the subdivision of land. The Act included all the acts like the Town Planning and Development Act 1928, Metropolitan Region Town Planning Scheme Act 1959 and the Western Planning Commission Act 1985 into a single piece of legislation.

Environmental and Planning Law - Part A

Question No.1: -

  1. Section 5 of the Environmental Protection Act of 2019 defined what constitutes an Act. According to Section 5 of the Act an action includes the following components: -
  2. a project
  3. a development
  4. an undertaking
  5. an activity, series or group of activities
  6. work or a task
  7. A material change or alternating in any of the actions tag has been defined in paragraphs (a) to (e)

The Section also specifies that if a government authority authorizes another person to do an act, the action is not an action.

If the Government is funding for any action, the action will not be considered as an action under this Act. [1]

In the following case scenario, the actions that are being performed constitutes a project for which development will be done in the form of land clearing, diverting a watercourse, building significant infrastructure including roads, gutter supply, and sewage and fencing. None of the work has been specified by the government or funding provided by them for the same. Therefore, all the tasks that the organization is planning to do for converting the outskirts of Katherine in the Northern Territory will amount to action.

  1. If the developer does not refer the project to the North Territory Environment Protection Authority, so the three possible options available for the NT EPA will be the matter can be referred to the commonwealth government who also has the right to refer the certain matter on a national level along with the state or territory government. So, NT EPA can work along with the Commonwealth Government. According to Section 31 of the Act, NT EPA can make a recommendation to minister a proposed environmental objective or a referral trigger or an amendment to an objective or trigger. The minister or the referral trigger has the right to accept or reject the trigger but they are under an obligation to publish a statement regarding the same.
  1. According to the question given the developer has submitted the project for referral and Environmental Impact Assessment. Environmental Impact Assessment (EIA) means to analyze and evaluate what will be the impact of a particular project on the environment while developing it. Factors like socioeconomic factors, cultural factors, and human health impact factors are taken into consideration at the time of EIA. It describes the action in project planning and design. Section 48 of the Act EP act states that a proponent must refer to NT EPA that: -
  • The action has a chance or potential to make a significant impact on the environment or;
  • The action is meeting a referral trigger.

 Whenever an assessment is made so the thing that are considered are as follows: -

  1. Impact sources: - Impact sources mean that what will the impact of the project on the environment. For example, if a project is discharging liquid waste into water streams then the project is having a negative impact on the environment.
  1. Impact pathways: - It means that by what means the project is polluting the environment. In the following situation stated above all the works that are going to be performed on the outskirts of Katherine in the Northern Territory should not have a negative impact on the environment and if they do the work will not be cleared by NTPIA in the course of environment assessment.
  1. Environmental Values: - They include the factor that is important for the environment to function properly. So, if the project that is planned to be constructed on the outskirts is having a negative impact on the environment it will not be accepted in environmental impact assessment. In this case, also the assessment will be done on the basis that after the project has been made on the outskirts what ate the impact of it on nature, whether they are positive or negative.
  1. Significant Residual Impacts: - it means that what will be the effect of the project on the environment after it has been established. In this case also the assessment will be done on the basis that after the project has been made on the outskirts what ate the impact of it on the nature, whether they are positive or negative.
  1. Section 64 of the Act provides that when the environmental assessment process is complete, it is the duty of NT EPA to give an assessment report to the minister. Hence in the following situation also the minister will be provided with a report for assessment. As per section 65 of the Act, the report must contain a draft proposal that is drafted as per the regulations and the draft should specify what will set out the conditions recommended to apply to that approval.

Section 69 of the act states that the minister may:-

  • Accept the draft if it is as per the guidelines that have been framed
  • He may instruct to amend the draft to make it acceptable or
  • He can also reject the draft if he comes to the conclusion that the draft prepared is not in accordance with the guidelines framed for the same.

If in any Scenario the minister is rejecting the draft so, according to Section69(2) of the Act, it is the established duty of the minister to publish a report in the public stating the reasons for what the draft had been rejected and should serve a copy of the same to the NT EPA as well as the proponent.

Therefore as per the situation mentioned above, Kathrine will be drafting the proposal for converting her outskirts into commercial property, as per Section 63,64,65 of the environmental protection Act

  1. Yes the farmer can make the NEPTA or the minister consider his concerns about the project. Section 109 of the Act specifies the minister may approve the environmental proposal if:- :-
  2. The minister becomes aware of the information that was not provided to him at the time when the proposal was made, so that the draft can be accepted;
  3. The minister later feels that the approval of draft is nor appropriate
  4. If the minister on reasonable grounds comes to a conclusion that environmental impacts of the same can be mitigated or managed, an environment offset is not appropriate and last on request of the approval holder.

So, in the following situation, the farmer can convince the minister on the various ground like since he is a farmer so Land clearing could have a negative impact on his wall as well. Since he is farming and farming is an activity which required an adequate amount of water, so diverting a watercourse will reduce water levels in the land, affecting this business and productivity at the same time. Agriculture is an activity which is done at a place way from manmade building and structures. So he can make a draft of the various factors that are affecting him and convince the minister to either review the draft, amend it or he can revoke it.

Question 2:-

  1. According to Section 69 of the Planning and Development Act 2005, a local planning scheme is made under this Act with the objectives of making suitable provisions for the development or the use of land in the local planning scheme. As per the Act, a local scheme which is made should provide for planning, replanting, or re-constructing the local area. Section 70 of the Act prescribes that one land that has been approved cannot be used for more than one local planning scheme that are applicable to the area. Therefore to get the land approved for construction it should comply with Section 69 and Section 70 of the Planning and Development Act,2005. to Section 69 of the Planning and Development Act 2005, a local planning scheme is 2005.[2]

 But, on the contrary, if he is not permitted for the same, he needs to get the description changed. According to Section 72 of the Act, the Local government prepares a scheme with reference to the land within its district. The Scheme should also define the plan and should specify the methods the plan should implement. Section 90 of the Act states that if the minister is not satisfied with the plan, he can recommend an amendment in writing from the month when the report was sent. When the report is sent to the minister he prepares a consolidation in which the amendments are made in the proposal that was rejected and later approval is sought for the same.

Therefore, as per the problem stated even if the plan is not permitted then according to the laws prescribed in the act he has the right to amend it or make corrections as per the requirements and later get it approved by the concerned authority.

  1. Division 2 of the Act relates to compensation and acquisition. It specifies the matter where compensation acquisition will be given to the ones who are getting affected by the same. Section 173 of the Act specifies that if any action on the land is bringing loss to others, then the people affected have the right to claim for compensation. Any person whose land has been affected by making of the planned scheme, the person affected has the right to claim for compensation in. respect of the damage that they are facing. But the claim for compensation cannot be made after the plan has been approved after the date when the minister made the requisite amendments. It is the duty of the authority to make agreements with them. Owner of the property to and discuss with them the plans and the amendments.

Section 174 of the same Act tells the conditions when the land that has been acquired has been affected in a negative way. According to the Section if the land that has been acquired completely or partially acquired:-:-

  • The Land is continued to be used in a non-conformed way
  • The land is serving no purpose for the development of public
  • The errection ,alteration of extension of the land of any building in future, on -conforming the use of land to public.

So, in the following situation also if the local people are thinking that their land is getting used in an ineffective, so they have the right to claim for for compensation[3]. The people deprived can also appeal to the court regarding the same.

  1. Yes the he Residents have the right to appeal to the decision of the consent authority if they are not satisfied with the decision that it is unfair for them. Section 236 of the Act relates to making an application for Review. According to the Section, State Administrative Tribunal is given the authority to review the appeal that falls under this category. If the planning commission does not give the authority to the commission to make an appeal, still the planning scheme can be taken to give if the planning scheme has specified that the person has the right to appeal against the decision if they are not satisfied. Sub Section (4) of the Act specifies that if the planning scheme has provided for an appeal, referral to the State Administrative tribunal than the Act will be made applicable. Section 239 of the Act states that the applicant at the time of making the application can elect no party to the application or he can be represented by a legal practitioner the same.[4]

Environmental and Planning Law - Part B

Public Interest Litigation:-

PIL is a mode of litigation which is used for the protection of Public Interest. This type of litigation was bought up when only cases of private parties were concerned and matters of mother nature were not concerned. It is the power which is given by the judiciary system to the public that the persons whose rights have been violated can approach the same. The concept of Public Interest Litigation was not defined in any law or statute but now this has been accepted in the judiciary system.

Laws that have been framed address remedies and substantive aspects. Similarly, they should be provided for environmental protection also for conservation and well use of the environment. It includes both public and private resources, natural and cultural aspects, biological and ecological balance. It also includes proper aspects such as EIA( Environmental Impact Assessment) access to information and participation of people in decision making. Laws should also impose duties and rights that are enforceable to the public in regards to environmental protection, judicial review of a situation if harm is caused by the actions of a particular situation and proper compensation for environmental harm. Therefore, in order to save and conserve the environment, there was a need for enforcing Environment Public Interest Litigation.[5]

Public Interest Litigation is litigation that takes place when a case is filed for the welfare of the society and people in a greater way. It is one of the major factors which influence the decision of a public official. It includes bringing a proceeding and claiming that a government official has acted in such a way that the local people are suffering from the same.

PIL helps to prevent, mitigate, and compensate for the harm that has been caused to the environment. It is a well-known and established rule has been used for a range of social policy and campaigns in Australia. As a result of the same, more and more social workers are getting inclined towards PIL for seeking justice.

PIL is intended to receive justice on a greater level where justice for an ample amount of people is involved. PIL plays a crucial role when it comes to environmental protection because the role of litigation in this particular field of social policy has a very strong impact on the judiciary system, PIL being a source of the system of study at various institutions and departments. It is an impelling method for policymakers also because all the matters in which concern of a lot of people is involved, politicians always go to that road.

The purpose of Environment Public Interest Litigation(EPIL) is to guide the local public to raise their voice against environmental issues. It enables the public, volunteers, private, and other sectors to participate as well as take reasonable actions to conserve mother nature. This ligation has been considered quite efficient and effective when sending a warning to polluters and people responsible for environmental destruction. It has been also observed that most NGO's bring up EPIL ( Environment Public Interest Litigation). The biggest obstacle that is faced by environmental litigators is the lack of financial resources. Many courts do not even address the cases if they have the authority to do so because of a lack of interest. Significant actions have been taken and compensation has been paid to the people affected by the damage caused.[6]

 These are the ways by which aspects of regulating the conservation, effective, and efficient use of the environmental resource. The court will also make regulations for public and private resources, natural and cultural change, biological and ecological integrity.

When there is public interest litigation, the media plays a very crucial role when the appeals are concerning environmental issues and they sometimes play a very crucial role in changing the decision of the judiciary. In 2015 at the "green welfare" debate in Australia, the federal court challenged a coal mine and it was stated in the debate that public interest Litigation is an important fact that is mostly underestimated and overlooked. It is one factor which should be given utmost importance because a PIL is only filed when a government action or decision is affecting a lot of people. All of the affected people simultaneously file an appeal which is known as a PIL.

Strengths and limitations of Judiciary in responding to climate change

Pollution is increasing at a tremendous rate in the whole universe. The increased amount of CO2 in the atmosphere has caused the degrading of the ozone layer which is directly impacting the climate. Climate change is happening because of pollution and excess amounts of Co2. The human desire to achieve mitigation and adaption to climate change is dependent upon the legal application of environmental rule of law- the framework that protects and sustains nature upon which our life is dependent on.

Environmental courts and tribunals are providing judicial help in the application of environmental rule of law for climate change. With the concept of application of environmental rule of Law, Brazil supreme court Justice Antonio Benjamin and World commission on Environmental law of the International conservation of nature (WCEL/IUCN)Enlighted, what role can a judiciary ply for the conservation of climate change. The importance of the judicial institution to resolve the issues and address the importance of climate change is apparent. Marches have been conducted throughout the world for the conservation of the environment and climate change. Not only the judicial system many leaders from political-economic, scientific, and religious sectors for addressing the impact of environmental pollution on climate change. The capacity of the judiciary to emphasize the impact of climate change in regards to environmental law is taking place in a much stronger, effective, and efficient way. Contemporary issues are arising which are motivating judges to resolve the rapid onset of climate change by the means of evolved environmental rule of laws.

Public trust, the principle of prevention, the right to live in a clean and healthy environment, the polluter pays, and the theory of "danger creation" is the propitious progeny of many legal devices. Environmental law has been applied by environmental judged to address emerging environmental science and the impact of large-scale industrial pollution of air, land, and water. The evolution of environmental rule of law from engaging legal instruments will accelerate as the issue of carbon-induced global warming will grow.

Proper implementation of environmental law and its understanding will help in achieving decision making as global warming is threatening nature as a whole. UN environment on environmental courts has been always applying the rule as society is continuously facing the problem of climate change and global warming. Two of the world's largest producers of carbon dioxide India and China have made extensive court systems to supply judges with proper knowledge of environmental law and related concepts. The strong support of environmental courts that have been shown by the UN is remarkable. Climate change litigation that is practiced in the United States has recently bought judicial attention on the matter in which a group of children argued that the United Nations is causing them harm as they are not acting efficiently for climate protection.

Global Judicial Institute on the Environment (GJIE) Is an organization that is formed with the motive of strengthening the knowledge and vital of judged who decide the plight of those who approach the court for relief from Global warming issues. Judges must decide on the matter in which courts relief from Global warming. Any judge who applies environmental rule of law possesses GJIE as a resource. It will be a duty of judicial colleagues who are decision-makers in the problem of global warming litigation. Proper global communication between judges and environmentalists is required for the proper functioning of environmental rule of law.[7]

According to Posner and Sustain, environmental concern is a matter on which immediate actions have to be taken and if there is an international agreement for the implementation of the same. It would be a matter for the world's interest and either worldwide taxation of consumption of levels of carbon and cap-and-trade program will be the most suitable in the following situation.

 Legal standing in the structure of climate change is nondescript. All of the resources of the environment are for public consumption. Sustainable society protects the interest of an individual by its importance because of contamination in the atmosphere.

From a judiciary point of view, the problem of climate change fits in the justice model because the effect of tort like thinking wold come in force to many people, who have not acted in a negative way, taken corrective measures for the protection of the environment and because of other activities innocents are the one suffering.[8]

In the case of Urgenda Netherlands, it has been framed that environmental lawyers should motivate other lawyers of different countries that pursuing a career in the field of environmental litigation is has a good scope for future point of view. Sometimes is difficult for the judiciary to make it happen, but effective government plans can surely help in the implementation of the same.

Judgments that have been delivered for climate change have been always appreciating and they have effectively contributed in serving 'Cosmopolitan Justice'. The judiciary has embedded in the struggle to prevent the earth from reaching the maximum level of global warming identified by 197 countries in the protection of the human race. The decision should be based on rapid science and a complete understanding of judicial proceeding. Normal Citizens of our society, male and female who act as judges have the duty to decide on the matters in which the rule of environmental law will be applicable. The most important issue is still facing humanity should be greatly empowered by instruction, support, contrition, and collaboration of environmental courts and the Global Judicial Institute on the Environment.

Biblography for Environmental and Planning Law

Laws and Statutes

  • Environmental Protection Act,2019.
  • Planning and Development Act,2005.

Papers and Others

  • Justice Brian J Preston SC- International Symposium towards Effective Guarantee of the Green Access: a global perspectives. 30-31 March
  • [1] Jinferg Zhou- The. Future of Public Interest Litigation in India
  • Michael D. Wilson:- Climate Change : The role of Judges
  • Inna Bianka Silva Quimosing, Elduardo Alvarez Armas – The Role of the Judiciary in Climate Change October 11, 2015.

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