Features, New South Wales, News, Opinion

MWOO to MSUE – challenging government decisions

The ongoing saga regarding the banning on reuse of mixed waste organic outputs (MWOO) for agricultural purposes in NSW is a reminder that – shock horror – the state government is not perfect, can sometimes make mistakes, and can make decisions that bring serious negative impacts.

So, when government authorities make decisions that we consider wrong, unjust, or unfair, what can we do?

Well luckily, our legal system has a range of ways we can challenge these decisions.

Merit Appeals – a fresh decision

The first way to challenge government decisions is through a ‘merit appeal’. This special type of appeal is usually to the Land and Environment Court, in which the court makes its own, fresh decision on merits – i.e. what the court thinks best in the circumstances, rather than on strict legal principles.

Merit appeals are only available for certain types of decisions. These are things like development applications, environment protection licences, and certain orders and notices like management orders for contaminated land, or prevention notices.

Merit appeals have a few large advantages over other appeals. Firstly, the court simply makes its own decision based on what it thinks best. This makes for an easier, quicker and cheaper appeal compared to other cases, and gives you an impartial referee (the court) that focusses on the real issues.

Secondly, many authorities don’t want a bad precedent of going against them, which can provide leverage. This can often lead the authority giving significantly more ground during negotiations once the case has been commenced. This has worked on many occasions to achieve more favourable outcomes on approving DA’s, varying orders, licences, and other instruments. However, you need to watch the clock carefully. Some of these merit appeals are only available within 21 or 28 days of the authority making its decision – wait any longer, and the appeal right is gone.

Administrative law challenges

The next way to challenge government authorities is an administrative law challenge – known as “judicial review”.

This is a legal appeal – that is, the authority made a legal error(s) in its decision-making process. This is more limited than a merit appeal, and therefore more difficult. However, if there is no merit appeal right available, this can be the only way of challenging such a decision.

There are a range of administrative law grounds that can be used to challenge decisions. The most commonly used grounds are:

• lack of power to take the action;
• failing to properly follow the relevant legislation in the administrative process;
• failure to accord procedural fairness; and
• unreasonableness.

The first and second type are often connected. I’ll illustrate both with a case I recently ran, Maund v Shoalhaven City Council [2019] NSWLEC 89. This was a challenge to a conviction for failing to comply with a clean up notice on the basis that the notice was not validly issued per the legislation. In short, legislation allows authorities to issue clean up notices for a “pollution incident”. However, the council issued the notice for an alleged waste offence – not a “pollution incident”. By failing to properly follow the legislation, it lacked the power to issue the notice, and the notice was overturned.

Procedural fairness is essentially the requirement to allow someone a fair opportunity to first seek to understand and address an authority’s decision before it is made, if that person may be negatively impacted by a decision. For example, if a party isn’t first given an opportunity to comment on a draft order before it is issued on them (except in emergencies), then it may be overturned for a denial of procedural fairness.

Finally, unreasonableness is a challenge on the basis that the decision made by the authority lacks any evident and intelligible justification. This is a high bar, and only a small proportion of “unreasonableness” challenges succeed – but can be an option of last resort.

Civil actions – suing government bodies

Finally, we come to actually suing the authority for damages – i.e. money. This is the first thing most people think of in terms of litigation – actions like suing for negligence, nuisance, trespass, and breach of contract. This is not an easy road. Government authorities have a range of protections under legislation, which significantly limit our ability to sue them for damages – but it is not impossible. What is needed is to demonstrate a lack of good faith
– for example, a council that was repeatedly notified of a serious issue, but still failed to act, for no good reason.

Tell ‘em they’re dreamin’

People love to complain about the decisions of government authorities, and the MWOO saga reminds us that they are not perfect. However, it is also a timely reminder some 20 years after Darryl Kerrigan in The Castle, that no one is above the law in Australia – even the government.

Gavin Shapiro is a partner at Hones Lawyers. He specialises in the waste industry, including waste contracts, waste legislation, EPA investigations and prosecutions, and operational issues.