Constitutional and Administrative Law

Question: Discuss about the Constitutional and Administrative Law. Answer: Introduction: Pablo owns a house in a suburb region called Pelican Point, which is located at the back of the Sydney Harbor. Pablos next-door neighbor owns a house right onto the cliff located at the back of the Sydney Harbor. The neighbor wanted to construct some stairs down the cliff facing the beach and built a small cottage on the waterfront to enjoy the beach in privacy. He submitted development consent for the same before the Pelican Point council. Pablo being the neighbor and the president of SLAPS an organization safeguarding the penguins, was strictly against the submission as the development shall block his view down to the water and it would affect the colony of little penguins residing in that area. He made a submission on his behalf and on behalf of SLAPS requesting the council to refuse to assent to the development proposal, as it would have an adverse impact upon the environment, species and him. However, the Pelican Council did not consider Pablos consideration by stating the reasons for the same. Judicial Review Judicial review plays a significant role in Australian Government system as it ensures accountability of the public officials and the legitimacy of their actions. Judicial review has been introduced by the Administrative Decisions (Judicial Review) Act, 1977 (ADJR Act) which provides the procedure to be followed in Judicial Review. A party having sufficient interest in the matter in dispute to which the judicial review relates may be involved in the judicial review process (Choper, 2013). Judicial review can seek on the grounds of irrational, illegal, improper procedure and violation of any procedural or substantive legal expectation ((Douglas Head, 2014). The parties involved in a judicial review process are entitled to one or more of the following reliefs or remedies (Cane, 2015). They are: A declaration An injunction Damages Mandatory order Prohibitory order Quashing order However, since judicial review is considered as the last resort, the claims for remedies are often becomes critical as during the judicial review proceedings, the court not only determines the legality of the claim but also determine whether such claim can be granted (Leyland Anthony, 2016). In the given scenario, Pablo and SLAPS can resort to judicial review in order to challenge the decision of the Pelican Point Council and to seek alternate remedy or remedies for the same. The judicial Review process usually includes four stages scope, standing, grounds of review and remedy. If Pablo and SLAPS seek judicial review of the decision held by the Pelican Point Council, he would seek a court order to set the decision aside or to hold back the action of the Pelican Point Council. However, a court usually does not direct any governmental department or agency regarding which course of action is to be followed by such department or agency (Pearce et al., 2015). While determining whether to allow judicial review for the matter, the court shall examine the procedure followed by the pelican point council while making the decisions (Groves, 2014). Firstly, the court shall determine whether the methods adopted by the Pelican council is in consistence with procedural fairness and is based on the principles of natural justice. Secondly, the factors taken into consideration by the Pelican point council while making such decision were in accordance with the relevant statute. Lastly, the while making the decisions, the decision makers were acting within the powers conferred upon them by the legislation (Auburn, Moffett Sharland, 2013). The role of the courts in the judicial review process is to decide whether the decision made by the government agency or department was rightly made (Pritchard, 2015). It does not review or re-make the original decisions on its merits. However, after the judicial review it is possible that the Pelican Council can give the decision but the subsequent decision shall be in strict adherence to the legislation, which is the Environmental Planning Act 2015 (NSW) in the given scenario. The court does not permit any random person to initiate a judicial review of any decision made by the Government relating to any specified administrative decision or action (Barnett, 2014). The person bringing the case before the court for to seek judicial review must have a sufficient or relevant interest in the case (Stewart, 2014). In the given scenario, Pablo and Slaps both have sufficient and relevant interest in the decision taken by the Pelican Point Council regarding the development consent for constructing a cottage near the beach. Pablo, as the neighbor of the applicant has sufficient interest in the case, as the cottage shall block his view of the Sydney Harbor. SLAPS or the Sydneysiders Love Adorable Penguins Society Incorporated was created to prevent any form of developments on the Sydney Harbor, thus protecting the little Penguins colony in that area. Pablo being the president of the SLAPS has a relevant interest in the case as the council has not considered the fact that the development of the cottage in the area shall affect the environment and the penguins as well. Pablo and SLAPS may seek judicial review because the decision made by the Pelican point council is: Irrational- the decision made by the pelican point council is irrational. The purpose of the Environmental Planning Act 2015 (NSW) laid down under section 5 of the Act stipulates that the Act shall encourage proper management and conserve artificial and natural resources including natural areas, forests, water, cities, agricultural land in order to promote economic and social welfare of the society and to maintain a better environment. Whereas, the Pelican Point Council has disregarded the fact that the development of cottage would affect the little Penguins who, if are not allowed to gather on the beach would have to travel further or swim to another place. This may be dangerous as either they may be eaten by in the water or would be tired of they have to travel far. Further, SLAPS claims that if the cottage is built, it might encourage other people to build and the items washed out of the cottage would end up as trash, which would be detrimental for the marine life including the li ttle penguins. Therefore, the decision made by the Council is so unreasonable that no relevant authority would make such decision. Improper Procedure- the decision made by the council was not made in compliance with the Environmental Planning Act 2015 (NSW) and neither the decision is based on the principle of natural justice. The Pelican Point Council has infringed the statutory provisions stipulated under section 5 and 79 C of the Act. The principle of natural justice refers to fair hearing which states that every person has a right to a fair hearing, that is, before deciding a case the decision maker must hear the contentions made by the other side (audi alteram partem) and no one can judge in his own case ( nemo judex in causa sua) (Marume et al., 2016). In the given scenario, SLAPS requests that Pablo must be given an opportunity to show the penguin colony to the Pelican Point Council and to understand the plight of the penguins and inspect their habitat in person. However, the Pelican Point Council did not consider looking or hearing what Pablo had to say regarding the plight of the penguins and their habi tat. They decided to the matter based on the written submissions and rejected SLAPS contention to hear Pablo, thus, infringing the principle of natural justice. Breach of substantive and Procedural legislation- However, Environmental Planning Act 2015 (NSW) itself contains a provision under Section 94 which stipulates that if the consent authority is of the opinion that the development would enhance the demand for public services or facilities within the specified area, the consent authority may allow such development consent submission. Such submission is accepted subject to a condition that the person making such submission makes a monetary contribution. If the procedural legislation itself includes unfair provisions, it cannot be expected from the public authority to exercise fairly (McDonald, 2015). The statute contradicts with its own provisions. On one hand, it stipulates that the objective of the Act is to safeguard the natural resources, animals and the environment under section 5 of the Act. On the other hand, it states under section 94 of the Act that if any development proposal increases the demand for public services or facilitie s, such development proposal shall be granted. Moreover, the Council is also of the opinion that their policy does not consider protection of penguin and a development application cannot be refused merely on that ground. In addition, the council is competent to charge Pablos neighbor development contribution under section 94 of the Act to keep boats from getting close to the cottage. If Pablo and SLAPS claims remedies against the decision made by the Pelican Point Council, the court shall determine the fact whether such claim is justifiable and whether the claim for remedies can be granted. However, if the court is of the opinion that remedies may be granted in the case, then Pablo and SLAPS shall be entitled to one or more of the following reliefs: Quashing order the court may pass a quashing order to nullify the original decision passed by the Pelican point council. Mandatory order- the court may also pass a mandatory order directing the council under review to carry out its legal duties effectively. Injunction- the court may also pass an injunction order to restrain the council and the applicant from developing cottage in the beach area. Reference list Auburn, J., Moffett, J., Sharland, A. (2013).Judicial Review: Principles and Procedure. OUP Oxford. Barnett, H. (2014).Constitutional administrative law. Routledge. Cane, P. (2015). Records, Reasons and Rationality in Judicial Control of Administrative Power: England, the US and Australia.Israel Law Review,48(03), 309-328. Choper, J. H. 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