From Smart to Unsmart Regulation: Undermining the Success of Public Interest Litigation

Thomson Reuters
Publication Type:
Journal Article
Environmental and Planning Law Journal, 2017, 34 (4), pp. 299 - 316
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In the 1990s, Gunningham and others, argued in favour of “smart” regulation, as an alternative to command and control systems. Government was encouraged to share regulatory space with third parties, accommodating them as surrogate regulators. Over the last three decades, Non-Government Organisations have entered the regulatory arena, providing tangible benefits by way of community education, enhanced public participation and shaping of policy agendas. Arguably, a particularly successful contribution has been the initiation of public interest litigation (PIL), commenced under the auspices of the New South Wales Environmental Defenders Office (NSW EDO). Although smart regulation has been used to appraise the agricultural product sector and pollution it has not been used to appraise planning and development regimes. This article contributes to the latter, by evaluating the growth of public interest litigation, focussing on the NSW EDO. Initially, government had acted in conformity with principles of smart regulation by introducing complementary policy mixes, enhancing the growth of PIL. However, it is argued that as PIL became successful, it challenged government in unexpected ways, leading to the introduction of conflicting policies and instruments, inconsistent with smart regulatory frameworks. The resulting imbalance diminishes the viability of public interest litigation and undermines one of the greater success stories of the environmental movement in Australia, in a move that is arguably unsmart regulation.
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