Posted on March 3, 2020 by Liam Mulligan and Megan Hawley

High Level Decision Making – Limits on Judicial Review

Governments are regularly called upon to make decisions, and to enact programs, which require them to weigh numerous (often hundreds, or even thousands) of competing and conflicting interests.  In doing so, decision-makers attempt to balance broad concepts of the public interest, the scarcity of resources,  environmental interests and the interests of relevant stakeholders.  Inevitably, some stakeholders are advantaged or protected by the actions taken or not taken by decision makers, whilst others are not.

In a recent case, the Court of Appeal was required to consider the extent to which the Court can intervene in decisions based on their impact on certain stakeholders. The issue arose in respect to a Water Sharing Plan (‘Plan‘) made by the Minister administering the Water Management Act 2000, for the Murrumbidgee River Regulated Water Source. The appellants claimed that, as a result of the Plan, a dependent ecosystem known as “Lake Paddock” was damaged. In general terms the appellants said that the plan was invalid, at least to the extent that it applied to them and impacted on Lake Paddock.

One ground of appeal raised by the appellants related to remarks made by the trial judge, to the effect that decisions such as the decision to make the Plan are made at a “high level” and not by reference to the specific circumstances of individual landowners. The trial judge had remarked:

“…is the Court to accept that because one small body of water (the water body in Lake Paddock) and its unnamed linking channel have suffered from inundation, that the Minister’s decision was flawed in an administrative law sense? No, is the answer.”

In dealing with this ground, Basten JA considered the nature of the decision being appealed. His Honour noted that the decision is of a kind known as a “polycentric” decision, that is, one which has “many centres” and requires the decision maker to balance a wide range of competing interests and objectives (including the public interest).

The Court remarked that decisions such as the siting of major infrastructure (such as an airport or a highway), are generally accepted to be polycentric. Many individuals may be adversely affected whilst the public interest is served by the provision of the infrastructure. Such decisions, the Courts have held, are not generally an appropriate subject for judicial adjudication.

Further, polycentricity may in certain circumstances narrow the scope of statutory duties, such as to afford procedural fairness or natural justice to affected interests, or to take into account mandatory considerations (see: Tubbo Pty Ltd v Minister Administering the Water Management Act 2000; Harvey v Minister Administering the Water Management Act 2000 [2008] NSWCA 356).

In dismissing the appeal, the Court remarked (at [124]-[127]):

Like most decisions which apply over a large area, there are apt to be winners and losers from any plan. In Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10 at [126], Spigelman CJ reproduced, in the course of dismissing an appeal from another application for judicial review of decisions under the statute, what the trial judge, McClellan CJ of the Land and Environment Court had said:

“It was for the Minister, and not the Court to balance the desired environmental outcome, and the chosen method of achieving it, with the beneficial and adverse social and economic consequences.”

Further, it cannot be the case that an applicant can point to a miniscule part of a water source, and say that the water management principles require regard to be had to the effect of a Minister’s plan upon that part.

Essentially, the Court’s decision reaffirms that the balancing of competing interests in administrative decision making is not a matter for the Courts. In order to establish the invalidity of an administrative decision, it will always be necessary for applicants to identify and make out some ground of judicial review. In the absence of any material breach of the statutory plan-making process, or other jurisdictional error, the fact that the decision made is incommensurate with a given stakeholder’s interests will not be sufficient to render the decision invalid.

The case can be read here: Randren House Pty Ltd v Water Administration Ministerial Corporation [2020] NSWCA 14

If you would like to discuss this post please contact Liam Mulligan on 8235 9715 or Megan Hawley on 8235 9703.