Australian Environmental and Planning Law - Assignment Example

Environmental Law Student’s Name Subject Professor University/Institution Location Date Part I 2. The claim is erroneous by asserting that individual can sue big emitters and the government in court. Generally, the treaty does not at all set binding limits to individual countries on greenhouse gas emissions. Eventually, a country can only use it at its own will or use it to supplement the jurisdictional rules. Each country is free to institute its own limits on greenhouse gas emissions. However, that does not limit its adoption. The true position is, Climate Change Convention objective is to stabilize the greenhouse gas concentrations in a level that prevent dangerous interference with climate system. Ultimately, Climate Change Convention only requires countries to gradually adopt its frameworks or refer to it to reflect the world standards as agreed by the Convention. The Convention may also support research activities to measure the emissions levels in a particular state. The information is then used for rating differences in application and effectiveness of the Conventions set rules1. Another point to consider is the fact that Climate Change Convention does not have any mechanism to enforce its rules and as it does not have any agency to represent it in each signatory state. That would mean that at no time would it bring a lawsuit to big emitter or government for failure to enforce the rules and adopt the set levels of emissions. The treaty applies when negotiating for specific international treaties in order to limit emissions. Therefore, the Convention’s set rules and principles are more applicable when countries negotiate with individual companies operations in its jurisdiction. Regulations are more applicable to Foreign Direct Investors or multinational corporations according to the way the government sees effective and feasible2. Parties only meet annually to assess the progress of adoption of mechanism and possibly recommend more efforts in some states. Most government depend on the work of agency and its own Acts on environmental matters to safeguard emission3. 3. The claim that the Australian Constitution does not offer the Commonwealth Parliament power to make laws on environmental issues is erroneous to an extent. Commonwealth limited powers hence allows it to work on matters of peace, good governance and order. Its laws deal with trade and commerce, taxation, corporations, fisheries and quarantine4. In addition, commonwealth is given power by the constitution to make laws with respect to international or external affairs but also Australian laws. Environmental laws are made by States according to their suitability. The State makes laws like Environment Protection, Biodiversity Conservation and Heritage Protection Acts as well as Regional Forest Agreement Legislation. In most case, the Commonwealth may enforce its laws if at all the laws of the state are inconsistent. Therefore, the Commonwealth parliament has far-reaching powers and mandate to oversee the environmental laws. Devolution does not mean that Commonwealth will not be involved with environmental regulation within the States. The Commonwealth laws related to the environment are unified system that regulates the states as they touches on nearly every issue that relate to each state5. In Australia, federal laws cover everyone. State also have its own laws which are close or similar to those of federal and can have other laws which are not specified in federal law. All in all, federal law supersedes states laws. Where there is a clash between the two laws, the federal law overrides those of the state. Commonwealth is thus not completely at State’s mercy. The government is not confined in the role of national environmental matters alone but also involved with matters of local significance6. Previously, Commonwealth environmental laws were seen as more indirect or ad hoc but later rectified the potential defects to reflect the appropriate role for Commonwealth. Legislation is well integrated and makes reference to ecologically sustainable development principles. It is also equipped to deal with emerging issues. However, Commonwealth recognizes the gradual evolution of environmental laws in individual States. In turn, State’s laws are given prominence but can be referred along with the federal laws to reach the most probable decision7. 4. Administrative Law offer supports to Environmental and Planning Law as it has role in planning and environment. Administrative law is a body that sets general principles the promote governance and exercise of power as well as discretions by the public authorities. The purpose of administrative law is to ensure that planners and those that make decisions for matters in the community are regulated by the law and does it reasonably and fairly. The court performs a merit review and hearing of appeals on decisions made in regard to environment and planning. Administrative law performs an important function on a range of environmental matters where most are far much reaching with effects to the community, developers, governments, action groups and land owners. All appeals are based upon the application of administrative law for approval of the laid down proposal. The appeal outcomes depend on the evidence that is laid before the tribunal8. Government environmental and planning decisions can be challenged if they are not parallel to other Acts like Infrastructure Act that support its commitment to planning. Judicial review will look for consistent themes between the Acts. Review is mostly affected by appeal on a point of law. The right to appeal is allowed but pursue on stated grounds based on an issue. Common law and constitutional rights guarantee review and it is also supplemented by Judicial Review Act. Review looks at the breach of rules in connection to a decision, failure to observe the procedures required, the jurisdiction rights of the decision-maker and other criteria. The process to initiate an action against environmental and planning decision can be done by groups and support from local, groups and national parties that are interested9. 5. Existing use rights is necessary to secure or safeguard valuable private property rights. The tradition of common law has placed property rights protection as central to judicial reasoning10. Common laws direct on matters of trespass and limit direct and intentional interference with a person enjoyment of the property. Nuisance; private, public and statutory nuisance outlines limitations and instances where right to property is not affected. However, common law expressly considers a number of factors when cases arises including; frequency, ordinary land use in an area, defendant reasons on use of land and available alternatives11. The common law has a focus on property rights stressing on private property, transactions and its uses12. It offers the right to subdivide and the right of the owner to use unfettered at common law13. The government acknowledges development through continued support of private ownership. The role of the government thus is to bring the right use of the land and for the greater benefit of the society. The right to employ rights is to ensure that the government support and encourages productive, useful employment and land use. No honest person, industry or party should suffer the consequences resulting from lack of the right procedures governing on land use. Common law take private property as important part of social benefit that must be put into right use through mechanisms put forward by the government to determine and monitor use, transaction and development14. Planning instruments cannot be interpreted as imposing land clearing controls on individual farmland continually used for farming. Planning does not erode or seriously undermine property rights though decision between judges varies. The concept of private property is immutable and inevitable. Actions succeed where development does not take into account the public interests. Common law protects public interest for property rights instead of the general notions pertaining to public benefit. The explicit terms states that, rights of property should be respected even if they conflict or appear to be in conflict with community interest15. The law protects the living conditions for property owners. However, environmental and planning law to some extent can erode property rights. The court actively interprets planning legislation and assert their role as to assist land owners to achieve development aims but only if they are desirable for public interest. Common law help in determining the tensions exist between private rights with public interest where planning restrictions limit landowners from deploying their interests. Part II The Executive Director ACTPLA letter to CEO X-Country to welcome the proposal of developing ski resort was not correct. Development approval was necessary for accessing the building. The proposed development cannot be defined as one of the zone objectives; to ensure compatibility between uses of land. The CEO did not take into consideration the primary function of the property. The area is demonstrated to be part of appropriate environment where core research, scientific study and education about corroboree frog can take place. This is unique habitat that can accommodate unique species of frog and can be studied further as Gwenda has done in her life and learning16. Without an approval, the effective use of the habitat cannot be enforced. There is a need to identify the problem that might arise in case development activities are initiated on the habitat. It would also bring environmentalists to consider the impacts of such activities on the corroboree species. Consultation with interested parties can further provide directions on what to do and review the pan to ensure species continuance17. Development approval act as a regulatory approval that guides and develops on the extent and scope of activities that can be carried out in a particular place. There is range of elements to include in this case most important among them being the right balance on sustainability objective and ensure public consultative processes. The increased complexity on the land may not be accounted for which might expose the Corroboree frogs to extinct18. Without a timely regulatory approval, the developer might be unaware of prevailing local area decisions. The proposed building can be group under overnight camping area and should be considered for approval. In fact it does not mutually relate to the skiing area19. The criterion that was followed in concluding for developing the buildings was haphazard and incomplete. There no any actions set to monitor construction and expansion of the facility. An approval would have offered a controlled start, middle and end and ensure regular reviews of construction progress against the plan set with sustainability concerns. The questions that arise are whether there can be flexible decision point for the developers. They might not have an automatic development control for deviations in its activities. Another question to ask is, were all stakeholders involved at the right time? Good communication was required for the groups and developers to see how those who visit the skiing zone would evaluate infrastructural development and importance. Without an approval, there would be no agreement require to ensure quality at the beginning or offer a continuous monitoring mechanisms against the set requirements20. Read More