Appeal procedures

The process for assessing appeals is governed by the Environmental Protection Act 1986. Under the Act, appeals are sent to the Minister for Environment. The Minister refers the appeal to the Appeals Convenor. In some cases, the Minister may refer an appeal to a committee. Appeal Committees are normally established where the issues of appeal require specialist expertise and knowledge which is not easily available to the Appeals Convenor or where the appeal is against a decision of the Minister.

Upon receipt of an appeal, the Appeals Convenor will check that it has been lodged within time and is otherwise in order. If the appeal is valid, the Appeals Convenor will inform the appellant and commence the investigation of the appeal.

If the appeal relates to a decision of the Environmental Protection Authority or the Minister, the Appeals Convenor will request a written report from the EPA. For all other appeals, the Appeals Convenor will ask the Department of Environment and Conservation for a report.

The Appeals Convenor will also consult with the appellant and any other person that may have an interest in the subject matter of the appeal. This will include the proponent where the appeal is lodged by a third party.

In considering appeals, the Appeals Convenor is required to act according to equity, good conscience and the substantial merits of the case, without regard to technicalities or legal forms. The Appeals Convenor is specifically not bound by any rules of evidence and may conduct inquiries in whatever manner considered appropriate. The Appeals Convenor does not conduct "hearings" like a court or a tribunal, instead meetings are usually held in an informal manner. In practice, the majority of appellants do not retain legal counsel for meetings. Note also that the Appeals Convenor can appoint an appeals panel to assist in more technical aspects of appeals.

The following steps describe how most appeals are investigated:

• Appeal lodged with the Minister for Environment;
• Minister refers the appeal to the Appeals Convenor for investigation;
• Advice is sought from the Environmental Protection Authority and/or the Department of Environment and Conservation;
• Convenor mediates, negotiates and consults with the appellant, proponent and any other relevant parties;
• Appeals Convenor reports to the Minister; and
• Minister for Environment determines the appeal and the Appeal Decision is published.

Mediation

The Appeals Convenor always looks for the opportunity to mediate in appeals disputes. This form of dispute resolution is very attractive as it offers a method of resolution where, if successful, both parties are satisfied with the outcome. Mediation sessions follow the principles of mediation developed by LEADR (Lawyers Engaged in Alternate Dispute Resolution).

New information

If new information is discovered as a result of an appeal investigation, the Appeals Convenor would normally discuss the matter with the EPA, or Department of Environment and Conservation, depending on the nature of the appeal. Discussion may lead to the EPA or Department modifying its advice on the appeal, taking into account the new information. If the EPA or the Department do not believe that the new information changes the situation, the Appeals Convenor must then decide whether, on balance, the Minister should take a different account of the new information in determining the appeal. The new information would be reported to the Minister together with an appraisal of the arguments presented by the appellant and the EPA or Department. The Appeals Convenor could recommend a course of action different to that recommended by the EPA or Department.

Reasonableness

The most difficult task of the Appeals Convenor relates to the matter of the reasonableness of the EPA's or Department's conclusions and actions. An unreasonable action is often defined at law as an action that would be considered "so unreasonable that no reasonable person could have come to that conclusion". In most circumstances the Appeals Convenor can explore the issue of "reasonableness" by examining the logic of the reasoning behind the EPA's or Department's decision. This is carried out by way of a systematic examination of the information and reasoning used in the decision making process. Any conclusion by the Appeals Convenor related to flawed reasoning would need to be supported by clear evidence and substantial argument.