These two amendments are really important for completing the process of environmental review and the way in which an environmental review may come about and be discharged through the OEP and beyond. As we have seen, there are circumstances in which the OEP may decide that something has occurred that causes it to take action through notices and various other things but not to pursue an environmental review in its entirety.
These amendments attempt to enable the public—individuals with a sufficient interest in a particular decision notice or environmental review—to act in instances where the OEP decides that it is not going to. It is not an ability for every member of the public to take vexatious legal action on an environmental review. The amendments specifically state that this pertains to
“any person with sufficient interest” in the proceedings. We envisage that to be people who have been reasonably closely involved in proceedings and are concerned that action has not been taken on a decision notice or environmental review. They would then be able to take that up by applying for an environmental review outside the mechanism of the OEP.
At the moment, if the OEP decides that it does not want to take any action, there is very little recourse for those people who have been involved in a particular process to do anything further. The amendment seeks to enable a person with sufficient interest to make an application, in this instance, to the upper tribunal to intervene, and to protect that person from paying the costs of any relevant proceedings, where they are a party with sufficient interest that feels that the processes through the OEP have not sufficiently enabled their rights and their considerations to be properly looked at.
Amendment 123 establishes:
“Where the OEP has given a decision notice to a public authority but has not applied for an environmental review, any person with sufficient interest may apply for an environmental review.”
Amendment 124 sets out the way in which that person may intervene and the protection that that person may have in terms of costs when they seek to intervene. That does not mean that they automatically get their way; it is a method by which the general public can be rather more assured that their views are not completely buried in these sorts of processes and that there is a route to redress outside the official structures, if they consider that the official structures have not undertaken what they might reasonably have expected to happen in the environmental review.