Enforced Silence of the Lambs
We should be concerned about the reduction of funding to the Environmental Defenders Office announced recently by the State Government.
The Attorney General’s press release said that the rationale for the cuts is that: “In tight financial times we have to make sure the money goes where it is most needed – to give legal advice and representation to people who cannot otherwise afford it and for cases which are in the public interest and have a good chance of success.”
The difficulty with the announcement is that it is all well and good to give the money to those who most need it, but what is the use of advice if you cannot do anything with it? If Moms and Dads come to see me about challenging decisions made by government or the local council I invariably have to tell them that the road ahead leads to judicial review proceedings in the Land and Environment Court (LEC).
Usually that is a bridge too far. Good legal advice given but no useful result.
The planning system is presently designed to give an applicant for development a ‘yes’ decision. Despite impressions to the contrary, there is no general right that allows moms and dads to obtain a merit review of a planning decision. Only the applicant for development enjoys such a right of appeal.
Of course, applicants have no need to appeal if they get a yes out of the system. Under this regime, the moms and dads who are usually aggrieved are the neighbours. They want to challenge the yes decision. After taking advice, they soon find that they have no rights to do so.
This is what led to the politicisation of the planning system. Being aware that it had no rights, the community turned to local councils during the assessment process seeking to encourage council to say no. The former State Labor Government responded by diminishing the role of councils in the planning system, apparently because there were too many no decisions.
In this environment the voice of the community was silenced by the planning system. Into this silence stepped the EDO, performing a valuable role in testing the limits of administrative decision-making using the only means available – judicial review.
If the test for effectiveness is outcomes in decided cases, then the EDO did good work challenging ministerial and council decisions. There is no doubt in my mind that past planning ministers will be supporting the present Government’s decision. But is that a good outcome for the community?
It you want moms and dads to participate in the planning system then the Government needs to empower, not silence, the voice of the community. Now that would be an innovation in planning.
Funding the EDO was a small price to pay for vigilance. Silencing the EDO serves the government, not the community.
The government went to the 2011 2011seeking a mandate to return planning decisions to the local community.
However it seems that in power, the government has decided that silence is golden. Instead of empowering the voice of the community, the government must want the community to simply be the sheep in its flock.
But is the government the good shepherd we need?