Page 5499 - Week 15 - Wednesday, 9 December 2009

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Justice Priestley of the New South Wales Land and Environment Court made comments of particular relevance to standing when he said:

About the only thing that can be said with complete assurance about these “rules” is that they are moving towards greater readiness to recognise plaintiffs as having locus standi no matter what it is that moves a plaintiff to have the court decide a question of law … it seems to me to follow … that when A raises a question whether B is in breach of a law, it is more rational for a court to ask whether it is true that B is in breach of that law than to ask why A should be allowed to ask the court to answer the question.

Although this seems to me to follow as a matter of generality, it also seems to me there must be limits to it as a universal proposition; clearly for one example, there will be cases where the alleged breach is of such a kind that its investigation would be of insufficient significance to justify the various costs. But the proposition to my mind is at least valid to the extent that when A seeks to have B’s alleged breach investigated in court and B claims A has no locus standi, B should have to show why the question should not be answered, rather than that A should be required to justify his presence in court.

Justice McClellan also says that many cases in the Land and Environment Court are:

… matters where an individual has taken proceedings to restrain a proposed domestic or commercial development which will impact directly on their own property.

He says:

In an urban environment it is likely that the plaintiffs would have had standing without the benefit of s 123 of the Environmental Planning & Assessment Act … my best estimate is that in at least 70% of the matters commenced by private individuals or corporations common law standing would have been available. It is probably greater …

There may be good reasons why any person in a community should not have a right to bring a criminal prosecution, or, at least, the state should have the right to terminate such a prosecution. However, with respect, it is difficult to understand how it can be legitimately argued that any citizen should not have the right to bring proceedings to enforce a public law. If, as Justice McHugh argues, the particular law is no longer relevant or appropriate, having regard to contemporary problems, the legislature may repeal it, or, a court in the exercise of its discretion, may decline to enforce it. To adopt the position that a citizen cannot approach a court to ask that a member of the executive or a government agency should obey the law, which the Parliament has provided in the interests of the general community may itself carry significant dangers for the stability of the community … Given that the court has a discretion as to whether or not to make orders these dangers are likely to far outweigh any risks from the bringing of proceedings.

In terms of the argument about floodgates opening, Justice Stein, a former judge of the New South Wales Land and Environment Court, analysed third-party applications

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