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Compendium of Judicial Decisions on Matters Related to Environment

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Compendium of Judicial Decisions on Matters Related to Environment Compendium of Judicial Decisions on Matters Related to Environment NATIONAL DECISIONS Volume II July 2001 ISBN: 92-807-2025-2 Compendium of Judicial Decisions on Matters Related to Environment ii National Decisions — Volume II I INTRODUCTION......................................................................................................................................................1 II BACKGROUND TO ENVIRONMENTAL LITIGATION ......................................................................................3 1. The Legal Basis of Civil Action.........................................................................................................................3 2. Judicial Review ..................................................................................................................................................3 (a) Judicial review as a statutory remedy ........................................................................................................4 (b) Judicial review as a common law remedy .................................................................................................4 3. Action in private law ..........................................................................................................................................4 (a) Trespass ......................................................................................................................................................4 (b) Nuisance .....................................................................................................................................................4 (c) Strict Liability: the Rule in Rylands v Fletcher .........................................................................................4 (d) Negligence ..................................................................................................................................................5 4. The Remedies .....................................................................................................................................................5 5. The protection of the riparian owner’s right to water........................................................................................5 III BACKGROUND TO CIVIL LAW SYSTEMS .........................................................................................................7 1. An Example of a Civil Law Judicial System: The French Judicial System......................................................7 2. Jurisdiction in the French Civil Law System.....................................................................................................9 3. French Case Law and Environmental Liability .................................................................................................9 IV THEMATIC ARRANGEMENT OF JUDICIAL DECISIONS ...............................................................................12 A Overview ..........................................................................................................................................................12 B Texts..................................................................................................................................................................25 1 PLANNING CONTROL .........................................................................................................................................27 i. Summers v The Far North District Council, 1998, (New Zealand) ................................................................28 ii. National Association of Professional Environmentalists v AES Nile Power Ltd, 1999, (Uganda)................48 iii. Bulankulama v The Secretary, Ministry of Industrial Development, 1999, (Sri Lanka) ................................54 iv. Save the Vaal v The Director Mineral Development Gauteng Region, 1997, (South Africa) ....................... 82 v. Paykel v the Northland Regional Council, 1999, (New Zealand)...................................................................88 vi. Farooque and Sekandar Ali Mondol v Bangladesh, (Bangladesh)................................................................112 vii. Ravensdown Fertilizer Co-op Ltd & Smith v Otago Regional Council, 1999, (New Zealand) ...................128 iii Compendium of Judicial Decisions on Matters Related to Environment 2 POLICE POWER AND COMPULSORY ACQUISITION IN ENVIRONMENTAL MANAGEMENT .....163 viii. Just v Marinette County (USA) .....................................................................................................................164 ix. Hatton v The Far North District Council, 1998, (New Zealand)...................................................................174 x. Daroux v The Minister of Lands, 1999, (New Zealand) ...............................................................................184 3 THE PLACE OF CULTURE IN ENVIRONMENTAL MANAGEMENT . ....................................................195 xi. Kotuku Parks Ltd v The Kapiti Coast District Council (New Zealand) .......................................................196 xii. Robert Te Kotahi Mahuta v The Waikato Regional Council and Anchor Products Ltd, (New Zealand) .....214 xiii. In Contact Energy Ltd v Waikato Regional Council, (New Zealand) ...........................................................248 xiv. H Te M Parata v The Northland Regional Council, (New Zealand) .............................................................286 xv. Yanner v Eaton [1999] HCA 53 (7 October 1999), (Australia).....................................................................310 xvi. Attorney General v Lahoy Akonaay, (Tanzania) ...........................................................................................340 iv IINTRODUCTION This publication has been developed in pursuance of the aims understand the concepts and principles rising from the of Agenda 21, particularly chapter 8 which recognizes, among developing jurisprudence. This is because the rate of other things, the need to facilitate information exchange, growth of the corpus of modern statute law in the including the dissemination of information on effective legal environmental field is singularly rapid in Africa. In most and regulatory instruments in the field of environment and countries awareness of the potential of judicial intervention development. This will encourage their wider use and adoption. in the environmental filed has grown largely because citizens have instituted proceedings in courts. But in other Consequently, the Compendium of Judicial Decisions was countries the effectiveness of the judicial mechanisms is devised with two objectives. First, it aims to create still weak because of lack of information and a dearth of awareness and enthusiasm among lawyers and non-lawyers human and material resources. This is compounded by alike on the current trends in the jurisprudence related to weaknesses in the institutions in charge of environmental environmental matters. Second, it aims to provide resource law enforcement. materials for reflecting on specific pieces of court decisions from the point of view of courts of different perspectives, Needless to say, inconsistent or incoherent enforcement grounded as they are in the unique legal traditions and of such laws inevitably will undermine the legal order in circumstances of different countries and jurisdictions. the environmental field. This necessitates exposure of law enforcement officers in general and the judiciary in The promotion of sustainable development through legal particular to comparative jurisprudence as a basis for means at national and international levels has led to interpreting local issues. This Compendium is produced in recognition of judicial efforts to develop and consolidate the belief that the provision of information, such as is environmental law. The intervention of the judiciary is contained in the Compendium can contribute to the necessary to the development of environmental law, repertoire of knowledge which judicial officers and law particularly in implementation and enforcement of laws enforcers can call on in their efforts to give meaning to the and regulatory provisions dealing with environmental enforcement issues facing them. Thus, it is intended to be conservation and management. Thus an understanding of a resource for training and awareness creation, and a source the development of jurisprudence as an element of the of inspiration as enforcement officers grapple with day to development of laws and regulations at national and day issues of environmental management. international levels is essential for the long term harmonization, development and consolidation of Given the novelty of environmental law, the Compendium environmental law, as well as its enforcement. Ultimately is a unique opportunity for practitioners, particularly those this should promote greater respect for the legal order from Africa, where case law is still scarce, to raise their concerning environmental management. Indeed, when all level of awareness and sensitivity to ecological concerns else fail, the victims of environmental torts turn to the and to share their experiences on possible approaches to judiciary for redress. But today’s environmental problems resolving environmental disputes. are challenging to legislators and judges alike by their novelty, urgency, dispersed effect and technical The Compendium is divided into National Decisions and characteristics. International Decisions, volumes I of which were published in December
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