Review in ACAT or the ACT Supreme Court

Under section 136D of the Act an 'eligible person' may apply to the ACAT for review of a decision of the EPA. An eligible person is a person mentioned in column 4 of Schedule 3 to the Act or any other person whose 'interests are affected by the decision'. A person whose interests are affected by a decision includes unincorporated and government bodies in relation to which the objects and purposes of a body are relevant to the decision, which may qualify the organisation with standing to proceed with a matter (ACT Civil and Administrative Tribunal Act 2008, s22Q). There is a long list of reviewable decisions set out in Schedule 3, including: exclusion of or refusing to exclude a document or part of a document from public inspection (item 1); granting an environmental authorisation subject to a specified condition (item 7); and varying an environmental authorisation (item 11) (see Chapter 12 in this Handbook for more information on ACAT).

In addition to lodging an appeal in the ACAT, persons working to protect the environment for the public interest should be aware of the much underutilised tool of an injunction, available under Division 13.3 of the Environment Protection Act. Where there is a breach, or likely to be a breach, of an environmental authorisation, an environment protection order or of the Act itself, that has or is likely to cause serious or material environmental harm, the ACT Supreme Court may order the respondent to remedy the breach, to stop committing the breach or, where the breach is anticipated, to not commit the anticipated breach (s 128 of the Act). If the matter is urgent, it is possible to seek an interim order, but the court must be convinced that there is a real or significant likelihood that serious or material damage will occur before the initial application is decided (s 129).

Applications for injunctive orders can be made by the EPA or by any other person. However, the court will only grant leave to any other person to make an application where the person has first asked the EPA to take action and it has failed to do so and where the proceedings will be in the public interest (s 127). The barriers to making an application in the ACT are much higher than those in NSW where any person can make an application to the Court under section 252 of the Protection of the Environment Operations Act 1997 (NSW) plus they only have to establish a relevant breach of that Act.

It should be noted that there are risks associated with seeking such an injunction. The court may ask you to give security for costs, that is, proof that you will be able to pay the costs of the other party if your application fails (s 131). In addition, if you lose the proceedings, you may have to pay the other person’s costs (s 132) (see Chapter 12 in this Handbook for more information on barriers to commencing litigation).