Judicial review and civil enforcement

These pages describe proceedings that may be brought before the Land and Environment Court for:

civil enforcement of the planning or environmental laws specified in s 20(1) of the Land and Environment Court Act 1979 (referred to as civil enforcement proceedings)
judicial review of decisions and conduct of local and State government authorities and officers under the planning or environmental laws specified in s 20(2) and s 20(3) of the Court Act (referred to as judicial review proceedings).

The term ‘civil enforcement’ means seeking orders that:

stop people breaking the law
require people to obey the law
remedy damage or harm caused by breaking or failing to obey the law.

The term 'judicial review’ means asking the Court to review whether decisions or behaviour of government agencies or people have followed the law and, if not, requiring them to make a new decision or behave in accordance with the law.

The Land and Environment Court can hear and finalise proceedings for civil enforcement and judicial review under s 20 of the Court Act. These cases are allocated to Class 4 of the Court.

Practice and procedure

The Court has published a formal document that sets out the process and requirements for civil enforcement proceedings and judicial review proceedings. This is called the Practice Note – Class 4 Proceedings (PDF , 177.3 KB). The Practice Note explains the steps that need to be undertaken before the first directions hearing, at the first directions hearing, before the second directions hearing, at the second directions hearing, before and at the final hearing, and the opportunities for mediation and other means of resolving the proceedings without a hearing.

Process

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Section 20 (2) of the Court Act states the Court has the same civil jurisdiction as the Supreme Court would, but for section 71, have to hear and dispose of proceedings:

(a) to enforce any right, obligation or duty conferred or imposed by a planning or environmental law, a development contract or a strata renewal plan,

(b) to review, or command, the exercise of a function conferred or imposed by a planning or environmental law, a development contract or a strata renewal plan,

(c) to make declarations of right in relation to any such right, obligation or duty or the exercise of any such function,

(d) whether or not as provided by section 68 of the Supreme Court Act 1970—to award damages for a breach of a development contract.

Section 20(3) states that for the purposes of subsection (2), a planning or environmental law is:

(a) any of the following Acts or provisions—

Aboriginal Land Rights Act 1983 (other than Division 5 of Part 7),

Biodiversity Conservation Act 2016,

Biological Control Act 1985,

Coal Mine Subsidence Compensation Act 2017,

Coastal Management Act 2016,

Contaminated Land Management Act 1997,

Environmental Planning and Assessment Act 1979,

Environmentally Hazardous Chemicals Act 1985,

Fire and Emergency Services Levy Act 2017,

Part 5A or 5B of the Forestry Act 2012,

Heritage Act 1977,

Part 2 of Chapter 6, Chapter 7 or Chapter 15 of the Local Government Act 1993,

Part 5A or 5B of, and Schedule 5A to, the Local Land Services Act 2013,

Schedule 3 to the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979,

National Parks and Wildlife Act 1974,

Ozone Protection Act 1989,

Pesticides Act 1999,

Plantations and Reafforestation Act 1999,

Plumbing and Drainage Act 2011,

Protection of the Environment Administration Act 1991,

Protection of the Environment Operations Act 1997,

Radiation Control Act 1990,

Rural Fires Act 1997,

Trees (Disputes Between Neighbours) Act 2006,

Uranium Mining and Nuclear Facilities (Prohibitions) Act 1986,

Waste Avoidance and Resource Recovery Act 2001,

Waste Recycling and Processing Corporation Act 2001, or

(b) any statutory instrument made or having effect thereunder or made for the purposes thereof, including any deemed environmental planning instrument within the meaning of the Environmental Planning and Assessment Act 1979.

Civil proceedings to restrain or remedy a breach of environmental or planning law can be brought before the Land and Environment Court if the proceeding is one that is listed in s 20(1) of the Court Act. This section states that the court has jurisdiction to hear and finalise:

(a) proceedings under section 44 or 153 of the Heritage Act 1977,

(aa) proceedings under section 282 of the Fisheries Management Act 1994,

(b) proceedings referred to in section 35 of the Environmental Planning and Assessment Act 1979,

(ba) proceedings under section 10 of the Uranium Mining and Nuclear Facilities (Prohibitions) Act 1986,

(bb) proceedings under section 18 of the Ozone Protection Act 1989,

(ca) proceedings under section 57 of the Environmentally Hazardous Chemicals Act 1985,

(caa) proceedings under Divisions 6 and 6A of Part 3, Part 7 and Division 3 of Part 10 of the Contaminated Land Management Act 1997,

(cb) proceedings under section 96 of the Pesticides Act 1999,

(cbb) proceedings under section 108 or 110 of the Pesticides Act 1999,

(cc) (Repealed)

(cd) proceedings under section 60B of the Pipelines Act 1967,

(ce) proceedings referred to in section 69G of the National Parks and Wildlife Act 1974,

(cf) proceedings under section 91H of the National Parks and Wildlife Act 1974,

(cg) proceedings under sections 193 and 202 of the National Parks and Wildlife Act 1974,

(cga) proceedings under Division 2 of Part 13 and sections 13.22 and 13.27 of the Biodiversity Conservation Act 2016,

(ch) proceedings under section 27 of the Wilderness Act 1987,

(ci) proceedings under Part 8.4 of the Protection of the Environment Operations Act 1997,

(cia) proceedings under sections 247 and 307 of the Protection of the Environment Operations Act 1997,

(cj) proceedings that have been transferred to the Court under section 149B of the Civil Procedure Act 2005 (transferred civil proceedings),

(cja) proceedings under section 100H of the Rural Fires Act 1997,

(ck) proceedings under section 57 of the Dangerous Goods (Road and Rail Transport) Act 2008,

(cl), (cm) (Repealed)

(cn) proceedings relating to elections for members of local boards (including relating to enrolment) under regulations made under the Local Land Services Act 2013,

(co) proceedings under section 24A, 25B or 27 of the Radiation Control Act 1990,

(d) proceedings under sections 673 and 674 of the Local Government Act 1993,

(da) applications under section 17 of the Restricted Premises Act 1943,

(db) proceedings under section 50 (Prevention of unauthorised work) of the Coal Mine Subsidence Compensation Act 2017,

(dc) proceedings under section 30 of the Swimming Pools Act 1992,

(dd) proceedings under Division 5 of Part 7 of the Aboriginal Land Rights Act 1983,

(de) proceedings under section 84 of the Design and Building Practitioners Act 2020,

(dea) proceedings under section 31 of the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020,

(df) proceedings under section 10.32, 11.13 or 11.19 of the Crown Land Management Act 2016,

(df1) proceedings under sections 335, 336 and 336E of the Water Management Act 2000,

(dg) proceedings under section 353D of the Water Management Act 2000,

(dh) proceedings under section 57 or 60 of the Plantations and Reafforestation Act 1999,

(di) proceedings under section 40 of the Plumbing and Drainage Act 2011,

(dj) proceedings under sections 109, 148, 171, 350 and 385 of the Biosecurity Act 2015,

(dk) proceedings under section 105 of the Building and Development Certifiers Act 2018.

Civil enforcement

The planning or environmental law that is the basis of proceedings in court will state who has the right to bring civil enforcement proceedings (for the full list, see above - What is civil enforcement by the court? and What is Judicial Review by the court?)

For example, s 9.45 of the Environmental Planning and Assessment Act 1979 allows any person to bring proceedings for an order to remedy or restrain a breach of the statute, whether or not any right of that person has been or may be infringed by or as a consequence of the breach ( s 9.45(1) ).

Judicial review

The people who are entitled to bring judicial review proceedings may also be specified by the statute under which the decision or conduct to be reviewed was made or carried out. These statutes are specified in s 20(3) of the Court Act (for the full list, see What is judicial review by the Court?). If the statute does not specify the person, the common law test for the standing of persons to bring judicial review proceedings will apply.

The statutes listed in s 20 (1), (2) and (3) of the Court Act may specify a time limit within which civil enforcement proceedings and judicial review proceedings need to be commenced. (for the full list, see above - What is civil enforcement by the court? and What is Judicial Review by the court?)

An example is s 4.59 of the Environmental Planning and Assessment Act 1979 which specifies a time limit of three months from the date that public notice was given of the granting of a development consent.